Court: Advocate General’s Opinion (Athanasios Rantos), Court of Justice of the European Union 

Case: Cases C-128/20 GSMB Invest, C-134/20 Volkswagen and C-145/20 Porsche Inter Auto and Volkswagen.   

Date: 23 September 2021  


Under Regulation No 715/2007, car manufacturers are not allowed to install ‘defeat devices’. Such devices were subject of the Volkswagen scandal of 2015, whereby certain cars would become aware that they were under laboratory emissions testing conditions and activate a system which reduced its emissions. Normal emissions were up to 40x higher than laboratory testing emissions.  

In the current case, car manufacturers had created vehicles which only purified exhaust gases, when its windows detected that the temperature was between 15 and 33 degrees Celsius. Furthermore, the purification rate would decline above an altitude of 1000m. The manufacturers argued that such a mechanism was necessary, for the protection of the exhaust gas recirculation (EGR) system.  

Two Austrian regional courts and the Austrian Supreme Court made a referral to the Court of Justice, as to whether such a mechanism was a ‘defeat device’, and whether the protection of the EGR system justified exception to the prohibition.  


The Advocate General held that such a mechanism was indeed a ‘defeat device’. The real-world driving conditions of Germany and Austria were considered, where the average temperatures were lower than 15 degrees Celsius and the geography meant that vehicles were often driven at above 1000m altitude. This meant that the purification device would not be active, for significant periods of day-to-day driving.  Furthermore, the protection of the EGR system does not fall into the exception to the prohibition, as what is required is the protection of the engine; the EGR is distinguished from the engine. Additionally, such vehicles are not sold in conformity with the contract under Directive 1999/44, as an average consumer can reasonably expect for a vehicle to be sold in compliance with regulatory requirements.  

A judgment date is awaited from the Court of Justice.  


Court: Court of Justice of the European Union, Grand Chamber 

Case: Avis 1/19 regarding the Istanbul Convention  

Date: 6 October 2021  


The Istanbul Convention on preventing and combating violence against women and domestic violence (“the Convention”) is a convention created with the aims of creating legally binding rules targeting gender-based violence, protecting victims, and punishing perpetrators. It embraces a broad concept of ‘gender’ based on socially constructed roles. The Convention was signed by the EU on 13 June 2017 but has not yet been ratified. The EU needs the Council to adopt a decision, having obtained the consent of the European Parliament.  

The European Parliament requested the Court of Justice to issue an opinion, to address the following issues in relation to the EU’s proposed accession to the Convention: 

  1. What the relevant legal bases are for the Council in the name of the EU, to accede to the Convention. The Council wanted a narrow accession, based on two legal competencies – asylum and immigration; and fight against cross-border crime. The European Parliament on the other hand, wanted a broad accession, using legal bases including freedom, security and justice, and public administration of EU law.    

  1. Whether the Council, who should be acting under qualified majority voting to accede to the Istanbul Convention, can instead wait for a prior ‘common accord’ between Member States before concluding the convention. This question was important as some member states, including Bulgaria, Hungary and Poland, have expressed strong reservations against the Convention, and the Council did not want to damage diplomatic relations in acting via qualified majority voting.  

  1. Whether the Council could accede via 2 separate legal acts, to cater for the fact that the EU does not have exclusive competences over asylum and non-refoulement in relation to Ireland, due to their opt-out under Protocol No. 21, and Ireland does not wish to accede to those provisions of the Convention. 


The Court of Justice opined that: 

  1. The correct legal bases were the ones proposed by the Council (narrow accession). However, the EU Parliament may of course reject the Council’s proposal, although this would mean non-accession. 

  1. The Council is not bound by an ad-hoc ‘common accord’ and must make the decision on accession via qualified majority voting (which the Council are reluctant to do, to maintain relations with ‘Eastern’ European member states). The Court of Justice noted that a simple majority of member states could force a vote in the Council, but this would nonetheless require a qualified majority of member states in the Council to disregard diplomatic relations.  

  1. The splitting of accession may only be undertaken when this is objectively required. The Court said that it is required in the current instance in relation to Ireland, as some of the Convention’s provisions do fall under the scope of Protocol No. 21, while others do not. 


Court: Court of Justice of the European Union – Grand Chamber 

Case: C-882/19 Sumal 

Date: 06 October 2021 


Mercedez Benz Trucks Espana (MBTE) is a subsidiary of the Daimler group, with the parent company being Daimler AG. Between 1997 and 1999, the company Sumal SL acquired two trucks from MBTE. In July 2016, the European Commission held that Daimler AG had engaged in anticompetitive practices between January 1997 and January 2011 by making arrangements with fourteen other European truck producers on pricing and gross price increases for trucks in the EEA, and so had infringed EU law which prohibits cartels. 

Sumal then brought an action for damages against MBTE to the amount of € 22,204.35 for loss resulting from that cartel. The case is currently on appeal in the Provincial Court of Barcelona, which has stayed the proceedings and made a reference to the Court of Justice to answer the question whether, and under what conditions, an action for damages may be brought against a subsidiary following a Commission decision finding anticompetitive practices by the parent company. 


“Undertaking” within the meaning of Article 101 TFEU covers any entity engaged in an economic activity no matter its legal status, and so designates it an economic unit even if it consists of several natural or legal persons. As a result, there is joint and several liability across the entities which make up the economic unit at the time the infringement is made. As a result, victims of an infringement can seek to engage the civil liability of a subsidiary as long as the victim can prove that the subsidiary and parent company constituted one economic unit. The victim must prove this by having regard to: 

  1. The economic, organisational and legal links uniting the two entities; 

  1. The existence of a specific link between the economic activity of the subsidiary and the subject matter of the infringement for which the parent company was held to be responsible. 

The Court also held that a national court can still make a decision on the subsidiary’s liability for the harm caused whether or not the Commission has adopted any decision or imposed any administrative penalties in respect of the subsidiary company. Article 101(1) TFEU only allows a national law to impute liability for one company’s conduct to another company where the second company control the first. 


Court: Court of Justice of the European Union – Grand Chamber 

Case: C-487/19 W.Z(Chamber of Extraordinary Control and Public Affairs of the Supreme Court - Appointment) 

Date: 06 October 2021 


This case concerns W.Z., a judge sitting in a specific division of the Regional Court of K, Poland. He was transferred to another division of the same court without his consent. After the KRS rules there was no need to adjudicate his complaint, W.Z. appealed to the Supreme Court of Poland. At the same time, W.Z. lodged an application for the recusal of all the judges sitting in the Chamber of Extraordinary Control and Public Affairs in the Supreme Court, arguing that due to the way they were appointed, the members of the Chamber did not offer the necessary guarantees of independence and impartiality. It was this Chamber who would be hearing the original appeal. All the judges concerned had been proposed to the appointment of judge in Resolution No 331/2018, which was the subject of a separate appeal before the Supreme Administrative Court. 

While the case was pending, the Polish President appointed judge A.S. on the basis of the same Resolution to the judiciary sitting in the Chamber of Extraordinary Control. Shortly before the hearing on the application for recusal, A.S. made an order dismissing the appeal lodged by W.Z. as inadmissible without having access to the case file or hearing W.Z. 

The Civil Chamber of the Supreme Court has now referred a question to the CJEU for a preliminary ruling. 


The CJEU first laid out that the regional court where W.Z. held judicial office could be called upon to rule on questions relating to EU law, and so it fell within the Polish system of legal remedies in the “fields covered by Union law” within the meaning of the TEU. As a result, maintaining the court’s independence is essential to ensure that effective legal protection exists. Transfers without consent of a judge to another court or between two divisions of the same court could be a way of exercising control over judicial decisions, and therefore undermine the principles of irremovability of judges and judicial independence.  

On the subject of the appointment of A.S. to the Supreme Court Chamber of Extraordinary Control, the CJEU first noted that this was a decision for the national court to assess, but concluded that any assessment would lead to the conclusion that the procedure of this appointment took place in clear disregard of the fundamental procedural rules for the appointment of judges to the Supreme Court, and in addition, could lead to individuals doubting the A.S.’s neutrality and imperviousness to external pressures. All of this is likely to prejudice the trust which the public must put in him to uphold justice and the rule of law.  

The CJEU also ruled that when making any conclusions, the court should take into account whether the conditions in which the appointment of the judge concerned took place were such as to preclude that judge from being capable of constituting an independent and impartial tribunal previously established by law, and if not, should prevent him from ruling. 


Court: Court of Justice of the European Union – Grand Chamber 

Case C-561/19 Consorzio Italian Management and Catania Multiservizi 

Date: 06 October 2021 


In 2017, the Council of State, Italy, a court of last instance, referred a question to the CJEU for a preliminary ruling in a case concerning a public contract for services related to the cleaning of Italian railway stations. This judgement was given in 2018. The parties to the proceedings then asked the court to refer other questions in the same manner. In 2019, the court made a new reference to the CJEU asking whether a national court of last instance must bring a question concerning EU law before the Court when the question has been posed by a party at a late stage of the proceedings, after the case has been set down for judgement for the first time or where a reference for a preliminary ruling has already been made. 


The Court reiterated the criteria from the Cilfit case (Case 283/81 Cilfit and others 06/10/1982) setting out the three scenarios where national courts are not obligated to make a reference to the CJEU (namely, the question is irrelevant for the dispute; the provision of EU law in question has already been interpreted by the Court; the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt). The CJEU held that if the three criteria are not satisfied and the interpretation of EU law is necessary for the resolution, a national court is still obliged to make a reference to the CJEU even if they have already done so on a different point of law in the same proceedings. 

October 2021