Case law digest June 2021

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-650/18 Hungary v Parliament

Date: 3rd June 2021

Facts: On 12 September 2018, the European Parliament adopted a resolution on a proposal calling on the Council to determine, pursuant to Article 7(1) TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded. That declaration triggered the procedure laid down in Article 7 TEU, capable of leading to the suspension of certain rights resulting from EU membership.Under the fourth paragraph of Article 354 TFEU, which sets out the voting arrangements for the purposes of applying Article 7 TEU, the adoption by the Parliament of the resolution at issue required a two-thirds majority of votes cast, representing the majority of its component Members. In applying its Rules of Procedure which provide that, in calculating whether a text has been adopted or rejected, account is to be taken only of votes cast for and against, except in those cases for which the Treaties lay down a specific majority, the Parliament only took into consideration, in calculating the votes on the resolution in question, the votes in favour and against cast by its Members and excluded abstentions. Taking the view that, when calculating the votes cast, the Parliament should have taken account of the abstentions, Hungary brought an action under Article 263 TFEU for annulment of that resolution.

Held: The Court dismissed the action finding that the contested resolution may be subject to judicial review under Article 263 TFEU. In the second place, it considers that MEPs’ abstentions do not have to be counted in order to determine whether the majority of two thirds of the votes cast, referred to in Article 354 TFEU, has been reached.

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-645/19 Facebook Ireland and Others

Date: 15th June 2021 

Facts: In September 2015, the Belgian Privacy Commission brought an action before the Brussels Court of First Instance, seeking an injunction against Facebook Ireland, Facebook Inc. and Facebook Belgium, aiming to put an end to alleged infringements of data protection laws by Facebook. In 2018, the Brussels Court of First Instance held that Facebook had not adequately informed Belgian internet users of the collection and use of the information concerned and that the consent given by internet users to the collection and processing of that data was invalid. The judgment was, however, appealed by Facebook before the Court of Appeal of Brussels. The latter referred the case for a ruling to the European Court of Justice.The appeal court taking into account that under the ‘one-stop shop’ rule laid down by the GDPR, where only the lead supervisory authority (Data Protection Commissioner (Ireland)) is competent to bring injunction proceedings, queried how the GDPR’s ‘one-stop shop’ mechanism affected the competences of the data protection authority; and in particular, whether the data protection authority could bring an action against Facebook Belgium, because Facebook Ireland has been identified as lead supervisory authority and controller of the data concerned.

Held: The Court of Justice held that the GDPR authorises, under certain conditions, a non-lead supervisory authority of a Member State to exercise its power to bring any alleged infringement of the GDPR before a court of that State and to initiate or engage in legal proceedings in relation to an instance of cross-border data processing. In particular, the ECJ holds that Member States’ supervisory authorities operation may take their own enforcement action after unsuccessfully seeking mutual assistance from the lead supervisory authority.

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

Case: C-55/20 Ministerstwo Sprawiedliwości

Date: 22nd June 2021

Facts: The dispute concerns an appeal by Poland’s Minister for Justice, who is simultaneously the Public Prosecutor General, against the decision of the Disciplinary Court of the National Bar Association of Poland to discontinue disciplinary proceedings against a lawyer. On two occasions, the Disciplinary Court of the Warsaw Bar Association, following an appeal by the National Prosecutor or the Minister of Justice, overturned those decisions and returned the case to the Disciplinary Officer.The referring court seeks to know whether Directive 2006/123/EC (‘the Services Directive’) and Article 47 of the Charter of Fundamental Rights of the European Union are applicable to disciplinary proceedings pending before it.

Held: The Advocate General in declaring that the Disciplinary Court is a “court” within the meaning of Article 267 TFEU and that legal representation is a service under the Services Directive highlights that the Services Directive is applicable to disciplinary proceedings before it. Furthermore, as long as the Services Directive is applicable, Article 47 of the Charter is also applicable to the case. This means that the referring court must apply Article 47 of the Charter in the proceedings pending before it.The Advocate General also highlighted that any national legal provision and any legislative, administrative or judicial practice that may undermine the effectiveness of EU law are incompatible with it. The Disciplinary Court may interpret national regulations in accordance with EU law or, where appropriate, derogate from national provisions that prevent it from ensuring compliance. It therefore goes that requests for preliminary rulings may not be suitable for dealing with what are essentially pathological situations in a Member State, in which the normal rules of legal compromise and fair play seem to be broken. Infringement remedies continue to be a more appropriate resource to resolve institutional confrontations in a context in which one or more actors refuse to accept CJEU judgments.

Court: Court of Justice of the European Union – Koen Lenaerts, President

Case: C-872/19 P Venezuela v Council

Date: 22 June 2021

Facts: This case relates to an appeal brought by the Bolivarian Republic of Venezuela in order to challenge the validity of sanctions adopted by the Council of the European Union against the country in 2017 following reports that there was a deterioration of the rule of law and human rights within the country. These sanctions, held in Articles 2, 3, 6 and 7 of Regulation 2017/2063, impose export bans on the sale, supply, transfer or export of certain military and other equipment to Venezuela, alongside a prohibition on services connected with the supply of such equipment.

In 2018, the Bolivarian Republic of Venezuela brought an action for annulment of Regulation 2017/2063, alongside Decision 2018/1656 and Implementing Regulation 2018/1653 by which the Council extended the sanctions adapted, in so far as its provisions concerned Venezuela. In a judgment of 20^th September 2019, the General Court held that the appellant had not demonstrated that it was directly affected by the sanctions within the meaning of the fourth paragraph of Article 263 TFEU, and therefore, the appellant lacked the necessary standing to maintain its annulment action. Accordingly, the proceedings were held to be inadmissible.

In bringing an appeal, the appellant, in light of the judgment of Almaz-Antey Air and Space Defence v Council (13^th September 2018), claimed that the General Court wrongly interpreted the criteria of direct concern provided for in the fourth paragraph of Article 263 TFEU.

Held: On appeal, the Court of Justice set aside the judgement of the General Court in so far as the latter had declared inadmissible the action brought by Venezuela for annulment of Articles 2, 3, 6 and 7 of Regulation 2017/2063. In making this decision, the Court of Justice highlighted that Venezuela as a third State with international legal personality, was to be considered a ‘legal person’ under Article 263(4) TFEU and further stated that this notion cannot be interpreted restrictively and must be read in a manner that ensures effective judicial review and the rule of law.

The Court further assessed that Venezuela was directly affected by the restrictive measures adopted by the Council noting that the sanctions actually prohibit Venezuela from carrying out transactions with EU economic operators and thus from obtaining numerous goods and services. The Court of Justice therefore found that the action brought by Venezuela was admissible and the case will be referred back to the General Court for judgment on the merits of that action.

Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-439/19 Latvijas Republikas Saeima (Penalty points)

Date: 22nd June 2021

Facts: B is a natural person upon whom penalty points were imposed on account of one or more road traffic offences. The Latvian Road Safety Directorate (‘the CSDD’) entered those penalty points in the national register of vehicles and their drivers. Under the Latvian Law on road traffic, information relating to the penalty points imposed on drivers of vehicles entered in that register is accessible to the public and disclosed by the CSDD to any person who requests it. B brought a constitutional appeal before the Latvian Constitutional Court, requesting the court to examine whether the legislation complied with the right to respect for private life. The Constitutional Court held that it must take account of the General Data Protection Regulation (‘the GDPR’).It asked the Court to clarify the scope of several provisions of the GDPR with the aim of determining whether the Latvian Law on road traffic is compatible with that regulation.

Held: The Court held that the GDPR precludes the Latvian legislation. It notes that it has not been established that disclosure of personal data relating to the penalty points imposed for road traffic offences is necessary, particularly with regard to the objective of improving road safety invoked by the Latvian Government. Furthermore, according to the Court, neither the right of public access to official documents nor the right to freedom of information justify such legislation.

Court: Court of Justice of the European Union – Advocate General Richard de la Tour’s Opinion

Case: C-709/20 The Department for Communities in Northern Ireland

Date: 24 June 2021

Facts: On 4 June 2020, CG, a Dutch and Croatian national, was granted pre-settled status in the United Kingdom on the basis of the EU Settlement Scheme. In the same month, CG’s application for Universal Credit was refused by the Department for Communities in Northern Ireland. CG claims that the refusal to grant her social assistance, despite the fact she was granted a right of residence for a fixed period under the EU Settlement Scheme, constitutes different treatment by comparison with British citizens and therefore discrimination on the grounds of nationality.

Hearing the case, the Appeal Tribunal for Northern Ireland referred a set of questions to the Court of Justice seeking to ascertain whether there is direct or indirect discrimination, for the purposes of Article 18 TFEU, as a result of certain EU citizens residing in the UK being prevented from receiving social benefits due to the legal nature of their right of residence.

Held: Advocate General Richard de la Tour, whilst noting that the ECJ is entitled to issue a ruling as this request was registered before the withdrawal date and all aspects of the case related to the period before this, highlighted that rights held under Article 24 of Directive 2004/382 meant EU citizens had the right to reside freely within member states and that an economically inactive national of another Member State could not be deprived of social assistance, simply on the basis of the legal nature of their right of residence. If the refusal of such assistance has a greater effect on, or affects a greater number of, the nationals of other Member States than those of the host State, this would constitute indirect discrimination on the grounds of nationality.

Nevertheless, the Advocate General notes that Member States should still be entitled to impose lawful restrictions on the grant of social benefits in order to ensure that ‘persons exercising their right of residence should not … become an unreasonable burden on the social assistance system of the host Member State’. With this in mind, de la Tour highlights that it is for the referring court, which alone has jurisdiction to assess the facts, to determine whether the grant of social assistance to a person in CG’s position is likely to represent an unreasonable burden for the national social assistance system.

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

Case: C-638/19 P Commission v European Food and Others

Date: 1 July 2021

Facts: In 1998, the Romanian authorities adopted an emergency government ordinance (EGO), which granted investors in disfavoured regions certain tax incentives for a period of ten years. In the process of preparing for accession to the European Union, Romania terminated that incentive scheme in 2005, three years earlier than laid down in legislation. Following an arbitral tribunal, requested by Swedish investors residing in Romania, the applicants were awarded approximately €180 million in compensation for the damage resulting from the revocation of the incentives laid down in the ordinance.In 2015, the European Commission adopted a decision declaring that the payment of compensation constituted State aid and asked Romania to recover the amounts already paid and to refrain from making any further payments. This decision was annulled by the General Court of the European Union in 2019. The European Commission consequently brought an appeal and requested that the Court of Justice set aside the judgment of the General Court.

Held: The Advocate General believes the General Court erred in law in concluding that the Commission was not competent to examine, in the light of the law on State aid, compensation paid by Romania following an arbitral award. The Advocate General takes the view that the General Court could not, without making an error of law, conclude that the Commission’s decision was vitiated by illegality with respect to the classification of an advantage, without at the same time ascertaining that the Commission had wrongly excluded the application of the Asteris and Others case-law (1988). The Advocate General therefore proposes that the Court set aside the judgment under appeal and refer the case back to the General Court.