Case law digest April-May 2021

Court: Court of Justice of the European Union – Stéphanie Mourou-Vikström, President, 

Case: C- 9333/20 Kondratenko v. Ukraine 

Date: 20 May 2021 

Facts: The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 February 2020. The applicant complained that his pre-trial detention had been unreasonably long. He relied on Article 5 (3) of the Convention. 

The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 (3) of the Convention, have been stated in a number of its previous judgments. In the leading cases of Kharchenko v. Ukraine, no. 40107/02, 10 February 2011 and Ignatov v. Ukraine, no. 40583/15, 15 December 2016, the Court already found a violation in respect of issues similar to those in the present case. 

Held: The Court declares the application admissible and holds that this application discloses a breach of Article 5 (3) of the Convention concerning the excessive length of pre-trial detention.

(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement.

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 

Court: Court of Justice of the European Union – Jon Fridrik Kjølbro, President, 

Case: C- 42329/11 and 47319 /11 - Bişar Ayhan and Othersv. Turkey 

Date: 18 May 2021 

Facts: The case concerns two applications arising out of the same incident. Relying, in particular, on Article 2 of the Convention, the applicants complained that the authorities had used excessive force and had failed to conduct an effective investigation into the wounding of the first applicant (application no. 42329/11) and the death of the relative of the remaining applicants (application no. 47319/11). 

At the beginning of 2009, the authorities received intelligence reports that terrorist groups from camps located near the Iranian border would enter Turkey illegally to carry out attacks. The information revealed that terrorists would be attempting to install landmines on roads, that they would attack soldiers who were providing road security and searching for mines, that they would be involved in obtaining firearms and other logistical supplies for the terrorist organisation, and that they would be organising terrorist attacks in the area before the local elections that would take place on 29 March 2009. Accordingly, in February 2009, certain border areas in the Başkale District of Van Province were declared first-degree prohibited military zones and the neighbouring villages were duly notified that for security reasons no civilians would be allowed in the designated areas. The notification also included a warning which pointed out that in the event of an attempt to enter the prohibited areas by terrorists, smugglers or civilians, the authorities were entitled to use firearms pursuant to domestic law. 

On 11 March 2009 at around 7 pm. two military battalions (Koru and Koçdağı) near the Iranian border observed on night vision thermal cameras that a large group of people on horseback was illegally crossing the border in the prohibited military zone. The rocky area was planted with landmines and both battalion stations were located approximately six kilometres away from the group. The soldiers from both battalions opened fire, as a result of which the first applicant, Mr Bişar Ayhan, was seriously injured and Mr Murat Yılmaz, who was a relative of the remaining applicants, died. According to the information in the case file, the first applicant was taken to Başkale Hospital, approximately 25 km away, with the help of the other people in the group. The incident report, drafted by both battalions, noted that one of the battalions had fired two 120 mm mortars at 7.30 p.m. and the other had fired three 120 mm mortars at 7.40 pm. in the direction of the group. 

Held: Declares the complaints raised in application no. 47319/11 under Article 2 of the Convention regarding failure of the authorities to provide prompt medical assistance to the relative of the applicants and Article 14 of the Convention inadmissible, and the remainder of the application, as well as application no. 42329/11, admissible; Holds that there has been a violation of Article 2 of the Convention under its substantive and procedural aspects. 

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 (2) of the Convention, the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement: 

(i) EUR 65,000 (sixty-five thousand euros), plus any tax that may be chargeable to the first applicant (application no. 42329/11) in respect of non‑pecuniary damage.

(ii) (ii) EUR 65,000 (sixty-five thousand euros) jointly, plus any tax that may be chargeable to the applicants in application no. 47319/11 in respect of non-pecuniary damage.

(iii) (iii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the first applicant (application no. 42329/11) in respect of costs and expenses. 

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 

Dismisses the remainder of the applicants’ claim for just satisfaction. 

Court: Court of Justice of the European Union – Yonko Grozev, President, 

Case: C- 73731/17 - Epure v. Romania 

Date: 11 May 2021 

Facts: The applicant was born in 1978. He currently lives in Măicăneşti, in a specialised State institution providing care to disabled adults. The applicant suffers from epilepsy and has been diagnosed on several occasions with slight to moderate mental impairment. According to the Government, the applicant was first diagnosed in 2005 as having a disability on account of his mental-health issues. A disability certificate was first issued in 2006, noting that his working capacity was reduced to 35%. Further certificates issued in 2012 and 2013 noted the existence of a severe disability (grad de handicap accentuat), without a recommendation for the need of a personal care assistant. In 2014 the applicant’s disability was assessed as profound (first-degree disability – grad de handicap grav); however, it was not until 2016 that the commission which examined the applicant with a view to issuing the disability certificates recommended that he be provided with the help of a personal care assistant. 

In 2012 the applicant, a repeat offender, was arrested and in 2014 he was convicted of rape and sentenced to eight years’ imprisonment. He was detained in several detention facilities. However, his complaints in the present application only concern the period from 6 December 2016 to 16 June 2019. He complains that he was held under a maximum-security prison regime in spite of the state of his mental health, and that the medical care provided to him was inadequate, inter alia because he had not been assigned a personal care assistant on an ongoing basis until he was released on 16 June 2019. From 4 October 2016 until 7 August 2018, he was kept under the maximum security prison regime in Focşani, Galaţi and Giurgiu prisons. 

Held: The Court, declares the application admissible and holds that there has been a violation of Article 3 of the Convention concerning the failure of the authorities to implement and provide a coherent and appropriate therapeutic strategy capable of responding adequately to the applicant’s medical needs during the period from 6 December 2016 to his release on 16 June 2019. 

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 (2) of the Convention, EUR 3,000, plus any tax that may be chargeable, in respect of non‑pecuniary damage.

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 

Dismisses the remainder of the applicant’s claim for just satisfaction. 

Court: Court of Justice of the European Union – Advocate General Kokott’s Opinion 

Case: C-490/20 V.M.A. v Stolichna obshtina, rayon ‘Pancharevo’ 

Date: 15 April 2021 

Facts: A married couple of two women (one Bulgarian national and one UK national) had a child in Spain, where they lived. The Spanish birth certificate lists both women as ‘mothers’ of the child. The Bulgarian mother applied to the Bulgarian authorities for a birth certificate for the child so that she could obtain a Bulgarian ID document for the child. The Bulgarian authorities asked her to indicate which of the spouses is the child’s biological mother, as Bulgarian birth certificates only allow one ‘mother’ and one ‘father’. The mother refused to supply this information, and the authority rejected her application. The mother brought an action before the Administrative Court of the City of Sofia, which then asked the CJEU whether it is against EU law for the Bulgarian authorities to refuse to register the birth of a Bulgarian child that occurred in another Member State and is attested by a birth certificate in which that Member State designates two mothers. 

Held: Advocate General Kokott recommends that the CJEU should strike a balance between the national identity of the Member States and the right to freedom of movement of a child and of their parents when considering the recognition of the parentage of a child of a married same-sex couple in the EU. Member States must recognise the parentage of a child for the purposes of the exercise of the rights conferred by EU law on EU citizens. Bulgaria must therefore issue this child with an identity document that lists both mothers as parents so that she can travel with each of her parents individually. However, Member States may rely on their national identity and concept of a traditional family to refuse to recognise a parental relationship for the purpose of drawing up a birth certificate in accordance with their national law. 

Court: Court of Justice of the European Union 

Case: C-665/20 PPU X 

Date: 29 April 2021 

Facts: In September 2019, the German judicial authorities issued a European arrest warrant (EAW) against X for criminal acts committed in 2012 against his partner and her daughter. In March 2020, X was arrested in the Netherlands. He objected on the basis that he had previously been prosecuted and judged in Iran regarding the same acts. He had been convicted of some of the charges and sentenced to a term of imprisonment which he had served almost in full before the sentence was remitted as part of a general leniency measure granted by the Supreme Leader of Iran to mark the 40^th anniversary of the Islamic Revolution. 

X argued that the principle of ne bis in idem, as set out in Article 4(5) of the Framework Decision on the EAW and transposed into Dutch law, precludes the execution of the EAW concerning him. Article 4(5) states that a judicial authority may refuse to execute an EAW if the requested person has been finally judged by a third State in respect of the same acts, provided that where there has been a sentence, the sentence has been served/is currently being served, or may no longer be executed under the law of the sentencing country. The Amsterdam District Court asked for guidance from the CJEU on: 

1) the margin of discretion in the concept of ‘same acts’ in Article 4(5); and

2) the scope of the condition that where there is a sentence, the sentence ‘has been served… or may no longer be executed under the law of the sentencing country’. 

Held: The CJEU held that an executing judicial authority must have a margin of discretion in order to determine whether it is appropriate to refuse to execute an EAW on the grounds of ne bis in idem. The concept of ‘same acts’ must be interpreted in the same way as it is interpreted under Article 3(2) of the Framework Decision, which deals with the concept of ne bis in idem relating to judgments made in Member States. The the condition relating to the execution of the sentence is met in the situation which occurred in this case. 

Court: Court of Justice of the European Union 

Case: C-846/19 EQ v Administration de l’Enregistrement, des Domaines et de la TVA 

Date: 15 April 2021 

Facts: Luxembourg law protects adults lacking legal capacity by conferring certain powers on third persons as curators and guardians. EQ, a Luxembourgish lawyer, exercises powers of representation under schemes for the protection of adults lacking legal capacity. In 2018, the Luxembourg tax authority charged him VAT for the activities of representation of adults lacking legal capacity. EQ believes those activities do not constitute economic activities subject to VAT and, in any event, that they fulfil a social function and should be exempted on that basis in accordance with the national legislation transposing the VAT Directive. The Luxembourg tax authority argued that supplies performed in the context of the professional activity of a lawyer do constitute an economic activity, and that they cannot be exempted from VAT. It also argued that EQ does not meet the requirement of being a body devoted to social wellbeing allowing him to rely on the exemption. The Luxembourg District Court asked the CJEU:

1) whether the activity of protecting adults lacking legal capacity may benefit from a VAT exemption;

2) whether those activities are covered by the concept of economic activity within the meaning of the VAT Directive;

3) whether those activities are exempted as ‘the supply of services … closely linked to welfare and social security work’; and

4) whether the lawyer carried out such activities may be considered to be a ‘bod[y] recognised by the Member State concerned as being devoted to social wellbeing’.

4)

Held: The CJEU found that the activity of protecting adults lacking legal capacity carried out by a lawyer constitutes an economic activity as a rule. This activity may be exempted from VAT if the supply of services concerned is closely linked to welfare and social security work, and if that lawyer benefits, for the business the lawyer operates for that purpose, from recognition as a body devoted to social wellbeing. It is for each Member State to lay down the rules linked to the recognition of bodies (other than those governed by public law) as being devoted to social wellbeing. The concept of ‘bodies recognised … as being devoted to social wellbeing’ is in principle sufficiently broad to include natural persons operating their business for profit. 

Court: Court of Justice of the European Union – Advocate General Tanchev’s Opinion 

Case: C-487/19 W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court - Appointment) and C-508/19 Prokurator Generalny (Disciplinary Chamber of the Supreme Court - Appointment) 

Date: 15 April 2021 

Facts: In Case C-487/19, Judge WZ was a member of the former Polish National Council for the Judiciary (the KRS). WZ has publicly criticised the ruling party’s judicial reforms in Poland. In 2018, he was transferred between divisions of the Polish Regional Court, which was essentially a demotion. WZ appealed the decision to the KRS, which, by means of a resolution of 21 September 2018, discontinued the proceedings concerning his appeal. WZ appealed this resolution before the Polish Supreme Court, and submitted a petition for all judges of the Supreme Court sitting in the Chamber of Extraordinary Control and Public Affairs (‘CECPA’) to be excluded from hearing his appeal. CECPA’s members are elected by the KRS, and WZ argued that CECPA therefore could not examine his appeal impartially and independently. The KRS proposed electing the CECPA judges via Resolution No 331/2018 of the KRS on 28 August 2018. Rejected candidates in these judicial appointment proceedings brought an appeal against Resolution 331/2018 before the Polish Supreme Administrative Court. Despite the ongoing proceedings, on 20 February 2019, the Polish President appointed AS as a judge in CECPA. On 8 March 2019, CECPA, composed of a single person (AS), dismissed WZ’s appeal as inadmissible without reviewing the case files. This was despite the fact that WZ had brought proceedings for the exclusion of all the judges of the CECPA from hearing his appeal. 

Case C-508/19 concerns MF, a Polish District Court judge. In January 2019, disciplinary proceedings were launched against MF alleging that her conduct resulted in overly lengthy proceedings. Later that month, JM, acting as a judge of the Supreme Court, issued an order appointing the Disciplinary Chamber of the Polish Supreme Court competent to hear MF’s case at first instance. MF claims that the proceedings against her cannot be continued because JM is not a judge of the Supreme Court, as he was not properly appointed to the position of Supreme Court judge in the Disciplinary Chamber. He was appointed on the basis of an announcement by the President of the Republic of Poland without the countersignature of the Prime Minister, which was made after the judicial selection procedure had already been conducted by the KRS. The appointment also took place after a resolution of the KRS containing the motion to appoint JM had been appealed to the Polish Supreme Administrative Court, but before that court had ruled on the appeal. The Polish courts referred WZ and MF’s cases to the CJEU. 

Held: Advocate General Tanchev suggests that as these are situations where judges were appointed in flagrant breach of the national laws applicable to judicial appointments, both CEPCA and the Disciplinary Chamber of the Polish Supreme Court are liable to fail the requirements established by EU law. The national courts must therefore assess the gravity and manifest/deliberate character of the breaches of national judicial appointment rules in these cases. 

Court: Court of Justice of the European Union 

Case: C-896/19 Repubblika v Il-Prim Ministru 

Date: 20 April 2021 

Facts: Repubblika is an association dedicated to promoting the rule of law in Malta. In April 2019, Reppublika brought a case before the Maltese Constitutional Court to challenge the procedure for the appointment of members of the Maltese judiciary. The constitutional provisions concerned give the Maltese Prime Minister a decisive power in the appointment of members of the judiciary. Repubblika says this casts doubt on the independence of Maltese judges and magistrates. Judicial candidates must also satisfy certain conditions laid down by the Maltese constitution and there is a Judicial Appointments Committee which assesses candidates and provides an opinion to the Prime Minister. The Maltese Constitutional Court referred the question to the CJEU. 

Held: The CJEU found that national provisions of a Member State which give the Prime Minister a decisive power in the appointment of members of the judiciary are not contrary to EU law if they also provide for the involvement of an independent body responsible for assessing candidates and providing an opinion. 

Court: Court of Justice of the European Union – Advocate General Bobek’s Opinion 

Case: C-561/19 Consorzio Italian Management and Catania Multiservizi SpA / Rete Ferroviaria Italiana SpA 

Date: 13 April 2021 

Facts: In 2017, during litigation proceedings concerning a contract for cleaning services, the Italian Council of State (acting as a last instance national court) referred a request for preliminary ruling to the CJEU. In 2018, the CJEU delivered its judgment. The parties to the litigation then requested that the Council of State refer other questions for a preliminary ruling. Accordingly, in 2019 the Council of State referred three more questions to the CJEU. One of these questions asked whether it is mandatory for a national court of last instance to refer a case for a preliminary ruling on the interpretation of EU law in circumstances such as those described above.

Held: Advocate General Bobek recommends that the CJEU should revisit its case law on the duty of national courts of last instance to request a preliminary ruling. The existence of this duty should depend on three cumulative conditions: (i) a general issue of interpretation of EU law; (ii) to which there is objectively more than one reasonably possible interpretation; (iii) for which the answer cannot be inferred from the existing case law of the CJEU.

Court: Court of Justice of the European Union – Advocate General Pikamäe’s Opinion 

Case: C-564/19 IS 

Date: 15 April 2021 

Facts: In August 2015, the Hungarian authorities arrested and questioned a Swedish national over an alleged infringement of firearms law. The defendant was informed through an interpreter of the suspicions against him and subsequently released. Since then, he has been living outside Hungary and the summons sent to him by the Hungarian authorities was returned marked ‘unclaimed’. Since the offence in question is punishable by a mere fine, Hungarian national law obliges the Hungarian Central District Court to continue the proceedings in the absence of the suspect, who is instead represented by a lawyer appointed by the State. The Hungarian court doubts whether the Hungarian authorities have complied with the directives on the rights of accused persons in criminal proceedings in the EU, as there is no information available about how the interpreter was selected or whether the interpreter and defendant understood one another well. The Hungarian court therefore asked the CJEU how the directives should be interpreted as to the scope of the right to interpretation of a sufficient quality and of the right of accused persons to be informed of the accusations against them, in the specific case of a trial in absentia. On the application of the public prosecutor, the Hungarian Supreme Court declared the lower Hungarian court’s referral to the CJEU to be unlawful because the questions referred were not relevant for the purposes of determining in the criminal proceedings at hand. The lower Hungarian court now wishes to ascertain whether the Hungarian Supreme Court’s declaration of unlawfulness and the subsequent initiation of disciplinary proceedings against the referring judge are in breach of EU law. 

Held: Advocate General Pikamäe recommends that the CJEU find that a national judge must disapply any national legislation which undermines its power to refer questions to the CJEU, on the basis of the primacy of EU law. Hungarian legislation enabling the public prosecutor to bring an action before the Supreme Court to declare a CJEU referral made by a lower criminal court as being unlawful is incompatible with EU law.

Court: Court of Justice of the European Union - Advocate General Pitruzzella’s Opinion

Case: Case C-783/19 Comité Interprofessionnel du Vin de Champagne v GB

Date: 29 April 2021

Facts: The Comité Interprofessionnel du Vin de Champagne, which safeguards the interests of champagne producers, brought an action before the Spanish courts seeking to prevent the use of the word ‘CHAMPANILLO’ to refer to tapas bars in Catalonia. The Barcelona Provincial Court asked the CJEU to interpret EU law on the protection of products covered by a protected designation of origin (PDO), such as the name ‘Champagne’, in a situation in which the allegedly conflicting name refers to services rather than goods.

Held: Advocate General Pitruzzella recommends that the CJEU find that PDO products are protected against all forms of commercial parasitism. Commercial parasitism occurs when an evocative element relating to certain products or services (such as their name) triggers directly in the mind of the average consumer the image of a product covered by a PDO.

Court: Court of Justice of the European Union

Case: C-30/19 Diskrimineringsombudsmannen v Braathens Regional Aviation AB

Date: 15 April 2021

Facts: In 2015, the captain on board an internal Swedish flight operated by the airline Braathens Regional Aviation AB subjected a passenger of Chilean origin to an additional security check. Acting on behalf of the passenger, who felt he had been the subject of discrimination on the basis of his ethnicity, the Equality Ombudsman asked the Stockholm District Court order Braathens to pay that passenger compensation for discrimination. Braathens agreed to pay the sum claimed without recognising the existence of any discrimination. The first instance court ordered the payment of the compensation sum, but declared inadmissible the Equality Ombudsman’s claims seeking a declaratory judgment finding the existence of discrimination. Under Swedish procedural law, the court was bound by Braathens’ acquiescence and was therefore required to dispose of the litigation without examining whether there had been any discrimination. The Equality Ombudsman brought an appeal before Swedish Supreme Court, who asked the CJEU whether the Swedish legislation complies with the requirements of Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Specifically, the Supreme Court asked whether, where a defendant acquiesces to a claimant’s claim for compensation, the court hearing the case must nevertheless be able to examine the question of the existence of discrimination.

Held: The CJEU found that a national law that prevents a court hearing an action for discrimination compensation from making a finding on the existence of that discrimination in cases where the defendant agrees to pay the compensation claimed without recognising any discrimination is contrary to EU law. A compensatory financial payment alone is not capable of ensuring effective judicial protection for a person who seeks to obtain a ruling that they have been the victim of discrimination.

Court: Court of Justice of the European Union

Case: C-194/19 H. A. v État belge

Date: 15 April 2021

Facts: HA, a third-country national, applied for asylum in Belgium. HA’s asylum application was rejected and a decision was made to transfer him to Spain instead. HA’s brother then arrived in Belgium and applied for asylum. HA brought an action against the transfer decision in his case, arguing that the two brothers’ asylum applications should be considered together. HA’s action was dismissed on the grounds that his brother arrived in Belgium after the decision to transfer him to Spain was made, and his presence could not therefore be taken into consideration when assessing the lawfulness of the transfer decision. HA appealed before the Belgian Council of State, which asked the CJEU whether an asylum applicant can rely on circumstances which occur after the adoption of a transfer decision in their case when appealing that transfer decision.

Held: The CJEU found that EU law precludes national legislation preventing an asylum applicant who is appealing a transfer decision from pleading circumstances that occur after that transfer decision is made. Such legislation infringes the applicant’s right to an effective remedy under EU law. The only exception is if the national legislation in question provides a specific remedy that can be exercised after the new circumstances have arisen, as long as that remedy allows for an ex nunc examination of the asylum applicant’s situation. It is for each Member State to set procedural rules that safeguard the right to an effective remedy.

Court: Court of Justice of the European Union

Case: C-733/19 Netherlands v Council and Parliament

Date: 15 April 2021

Facts: In 2019, the European Parliament and the Council of the European Union adopted new rules on the conservation of fisheries resources and the protection of marine ecosystems. Certain destructive fishing methods became prohibited. The use of electric pulse trawl continued to be allowed under strict conditions for a transitional period until 30 June 2021. The Netherlands brought an action before the CJEU for the annulment of the legislative provisions on electric pulse fishing vessels, arguing that the EU legislature had not relied on the best scientific opinions available when comparing the environmental impacts of electric pulse trawling and traditional beam trawling.

Held: The CJEU dismisses the action brought by the Netherlands. The EU legislature has a wide discretion in this field and is not obliged to base its legislative choice on scientific and technical opinions alone.

Court: Court of Justice of the European Union

Case: C-515/19 Eutelsat SA v Autorité de régulation des communications électroniques et des postes and Inmarsat Ventures SE

Date: 15 April 2021

Facts: The European Parliament and Council adopted Decision No 626/2008 with the aim of facilitating a competitive internal market for mobile satellite services across the EU. At the end of a selection procedure for operators of pan-European mobile satellite systems, the Commission selected, among others, Inmarsat Ventures SE. Inmarsat has a system called the ‘European Aviation Network’, which provides aviation connectivity services. In 2014, the French Authority for the Regulation of Electronic Communications and Postal Services granted Inmarsat authorisation to use specific frequencies in France, and in 2018 granted it authorisation to operate complementary ground components of mobile satellite systems. Eutelsat, a competitor of Inmarsat, brought an action before the French Council of State to annul the 2018 decision on the grounds of an infringement of EU law. The French court referred the matter to the CJEU and asked for clarification on Decision 626/2008.

Held: The CJEU found that a mobile satellite system which is principally based, in terms of capacity of transmitted data, on complementary ground components installed so as to cover the entire territory of the EU is not necessarily incompatible with the European legislative framework. The extended use of ground components is possible as long as there is no distortion of competition, and the satellite component of the system has real and specific usefulness.

Court: Court of Justice of the European Union – Advocate General Pitruzzella’s Opinion

Case: C-882/19 Sumal, S.L. v Mercedes Benz Trucks España S.L.

Date: 15 April 2021

Facts: In 2016, the Commission imposed fines on a number of automotive companies, including Daimler AG, for collusive arrangements on the pricing of trucks. Spanish company Sumal S.L. asked the Spanish courts to order Mercedes Benz Trucks España S.L. (MBTE), a subsidiary company of Daimler, to pay it approximately €22,000 in compensation. Sumal claimed this sum corresponded to the increased price it paid to MBTE when purchasing trucks manufactured by the Daimler Group, as compared with the lower market price that it would have paid without Daimler’s collusive arrangements. The Barcelona Provincial Court asked the CJEU whether a subsidiary can be held liable for an infringement of the EU competition rules by its parent company, and under what conditions such liability can arise.

Held: Advocate General Pitruzzella recommended the CJEU find that a national court can order a subsidiary company to pay compensation for the harm caused by its parent’s anticompetitive conduct in cases where the Commission has imposed a fine solely on the parent. This should only be permitted if the two companies have operated on the market as a single undertaking and the subsidiary has contributed to the fulfilling the aim and producing the effects of the anticompetitive conduct.

Court: Court of Justice of the European Union

Case: C-47/20, F. v Stadt Karlsruhe and C-56/20, AR v Stadt Pforzheim

Date: 29 April 2021

Facts: A German national who is normally resident in Spain has held a Spanish driving licence since 1992. He drove in Germany while intoxicated and his right to drive with his Spanish licence was therefore withdrawn, and he was prohibited from applying for a new driving licence for a 14-month period. During this period and afterwards the Spanish authorities renewed his licence on a number of occasions. Several years after the end of the prohibition period, the man lodged an application with the City of Karlsruhe to have the validity of his Spanish driving licence recognised. Karlsruhe refused his application on the grounds that under German law, the man had to present a medical-psychological expert’s report demonstrating his fitness to drive. The man appealed to the German Federal Administrative Court. The German court referred a question to the CJEU on the extent of the principle of mutual recognition of driving licences provided for by Directive 2006/126/EC.

Held: A Member State may refuse to recognise a driving licence that was merely renewed in another Member State after the licence holder had been prohibited from driving in its territory, as the mere renewal of a licence cannot be equated with the issue of a new licence. However, entries on driving licences fall within the exclusive competence of the Member State where the licence holder usually resides. A Member State therefore cannot affix to the licence any endorsement indicating a prohibition from driving on its territory.

Court: Court of Justice of the European Union

Case: C-826/19 WZ v Austrian Airlines AG

Date: 22 April 2021

Facts: An Austrian Airlines passenger is seeking flat-rate compensation of €250 for the diversion of his flight between Vienna and Berlin. The flight was initially supposed to land in Berlin Tegel airport but actually landed in Berlin Schönefeld airport, with a delay of nearly an hour. Austrian Airlines did not offer the passenger any onward transport or offer to bear the cost of transferring the passenger between the airports. Austrian Airlines argues that the mere diversion to a close-by airport does not grant a right to flat-rate compensation. It also argues that the delay was due to extraordinary circumstances caused by significant meteorological difficulties. The Austrian Regional Court asked the CJEU to interpret the Air Passenger Rights Regulation on this topic.

Held: The mere diversion of a flight to a close-by airport does not grant a right to flat-rate compensation. However, as a rule the passenger is entitled to flat-rate compensation if they reach their final destination, (i.e. either the destination airport for which the booking was made or another close-by destination agreed with the passenger) three hours or more after the original planned arrival time. The air carrier must offer on its own initiative to bear the cost of transfer either to the destination airport for which the booking was made or to another close-by destination agreed with the passenger. If the air carrier fails to comply with its obligation to bear this cost, the passenger is entitled to reimbursement of the sums expended that are necessary, appropriate and reasonable in order to remedy the failure of the air carrier in the circumstances.

Court: Court of Justice of the European Union

Case: C-504/19 Banco de Portugal , Novo Banco SA and Fondo de Resolución v VR

Date: 29 April 2021

Facts: In 2008, VR entered into a contract with Banco Espírito Santo, Sucursal en España (BES Spain), the Spanish branch of the Portuguese bank Banco Espírito Santo (BES). In view of BES’s severe financial difficulties, in 2014 Banco de Portugal created a ‘bridge bank’, called Novo Banco SA, to which BES’s assets, liabilities and other off-balance items were transferred. Certain liabilities were excluded from the transfer to Novo Banco. After the transfer, Novo Banco SA, Sucursal en España (‘Novo Banco Spain’) continued the commercial relationship that VR had established with BES Spain. In 2015, VR brought an action before the Spanish Court of First Instance against Novo Banco Spain seeking either declaration that the contract was null and void, or its termination. Novo Banco Spain said it could not be sued because the liability in question was one that had not been transferred to it. The Spanish Court of First Instance upheld VR’s application and Novo Banco Spain brought an appeal before the Spanish Provincial Court. In the course of the proceedings, it lodged two decisions adopted by Banco de Portugal in December 2015. Those decisions modified the original 2014 decision to create a bridge bank, stating that ‘as of today, the following liabilities of BES have not been transferred to Novo Banco: … any liability that is the subject of one of the procedures set out in Annex I’, which included the action brought by VR. In addition, the decisions provided that, to the extent that assets, liabilities or off-balance sheet items should have remained part of BES’ assets and liabilities but had actually been transferred to Novo Banco, they were transferred back from Novo Banco to BES, with effect from 3 August 2014. The Spanish Provincial Court dismissed Novo Banco Spain’s appeal. Novo Banco Spain then brought an action before the Spanish Supreme Court, claiming that under Directive 2001/24 on the reorganisation and winding up of credit institutions, the 2015 decisions are effective in all Member States without any further formalities. The Supreme Court referred the issue to the CJEU, noting the fact that the 2015 decisions purported to alter the 2014 decision with retroactive effect.

Held: The CJEU found that a court’s unconditional recognition of a reorganisation measure by a credit institution which has retroactive effect is contrary to EU law if it means that the client can no longer pursue legal proceedings on the merits against the ‘bridge bank’ to which the liabilities in question were previously transferred. Recognition of the retroactive effect of the 2015 decisions would be incompatible with the general principle of legal certainty, as it would call into question the judgments already delivered in favour of VR.

Court: Court of Justice of the European Union

Case: C-383/19 Powiat Ostrowski v Ubezpieczeniowy Fundusz Gwarancyjny

Date: 29 April 2021

Facts: On 7 February 2018, the District of Ostrów (a Polish local government authority) became the owner of a vehicle registered in Poland following a forfeiture order. The decision was served on 20 April 2018 and the district insured the vehicle from the next day the administration was open, Monday 23 April 2018. Given its poor technical state, the district decided to have the vehicle destroyed, and the vehicle was deregistered on 22 June 2018. On 10 July 2018, the Polish Insurance Guarantee Fund imposed a fine of 4,200 Polish zlotys on the district for failing to fulfil its obligation to take out an insurance contract against civil liability covering the use of that vehicle during the period from 7 February to 22 April 2018. The District of Ostrów brought an action before the Polish District Court seeking a declaration that it was not obliged to insure the vehicle during the period in question. The Polish court asked the CJEU whether there was an obligation to take out an insurance contract against civil liability

in respect of a vehicle registered in a Member State, which is on private land, which is not capable of being driven on account of its technical state and which, in accordance with the choice of its owner, is to be destroyed.

Held: The CJEU found that it is compulsory to conclude a contract of insurance against civil liability in respect of motor vehicles where the vehicle concerned is registered in a Member State and has not been officially withdrawn from use. Such an obligation cannot be avoided merely because a registered vehicle is not capable of being driven on account of its technical state at a given time.

Court: Court of Justice of the European Union

Case: C-815/19 Natumi GmbH v Land Nordrhein-Westfalen

Date: 29 April 2021

Facts: The German company Natumi produces soya and rice drinks, to which it adds the alga Lithothamnium calcareum in powdered form. The alga contains mainly calcium carbonate and magnesium carbonate. Natumi sells a drink called ‘Soja DrinkCalcium’, which is labelled as ‘organic’ and bears the following words: ‘calcium’, ‘contains calcium-rich sea alga’ and ‘contains high-quality calcium from the sea alga Lithothamnium’. The Land of North Rhine-Westphalia brought proceedings against Natumi on the basis that the use of calcium carbonate in the calcium enrichment of organic products is prohibited, even where enrichment is effected by adding algae. It is also forbidden to include references to calcium on such products. Natumi acknowledges that the use of calcium carbonate to enrich organic products with calcium is prohibited, but argues that Lithothamnium calcareum is a natural alternative to calcium and its use for enriching organic food should therefore be permitted. The German Federal Administrative Court referred the issue to the CJEU.

Held:The CJEU found that EU law prohibits the addition of the alga Lithothamnium calcareum in the processing of organic foodstuffs such as rice- and soya-based organic drinks for the purpose of their enrichment with calcium.

Court: Court of Justice of the European Union

Case: C-511/19 AB v Olympiako Athlitiko Kentro Athinon – Spyros Louis

Date: 15 April 2021

Facts: In 1982, Athens Olympic Athletic Centre (OAKA), a legal person governed by private law within the Greek public sector, recruited AB under a contract of indefinite duration. In 1998, AB was assigned the duties of technical adviser. On 1 January 2012, pursuant to Law 4024/2011, ΑΒ was placed under the Greek labour reserve system prior to his retirement, which resulted in his pay being reduced to 60% of his basic salary. In April 2013 OAKA terminated AB’s contract without giving him the severance pay provided for in the event of termination on the basis of Law 4024/2011, which provides that severance pay may be offset against the remuneration paid to the employee during his or her assignment to the labour reserve. AB challenged the validity of his placement under the labour reserve system before the

Greek courts, claiming that the Greek law established a difference in treatment on grounds of age that is contrary to the directive on equal treatment in employment and occupation. He asked that OAKA be ordered to pay him the difference between his salary before and after his placement into the system, as well as his severance pay. The Greek Court of Cassation asked the CJEU whether the Greek system involves indirect discrimination on grounds of age because it is reserved for employees who are close to full retirement, which presupposes that they have completed 35 years of contributions and have reached the age of 58, and, if so, whether such discrimination can be justified.

Held: The CJEU held that the Greek legislation is not contrary to EU law. The difference in treatment on grounds of age established by the labour reserve system pursues a legitimate employment policy objective (i.e. promoting a high level of employment and establishing an age structure that balances older and younger civil servants). The means of achieving that objective are appropriate and necessary.