January 2021

Court: Opinion of the Advocate General  

Case: C-645/19 - Facebook Ireland Limited v Gegevensbeschermingsautoriteit 

Date: 13 January 2021 

Facts: The Belgian data protection authority commenced proceedings before the Belgian courts against several Facebook group companies requesting that Facebook cease the placing of cookies without consent onto individuals’ devices in Belgium and destroy all personal data obtained in such a way. Facebook contends that only the data protection authority located within the state of Facebook’s main establishment in the EU, the Irish Data Protection Commission, is empowered to engage in judicial proceedings against Facebook for GDPR infringements. The Belgian court asked the Court of Justice whether the GDPR prevents a national data protection authority other than the lead authority from engaging in court proceedings in its member states against infringements with respect of cross-border processing. The Advocate General considered that from the wording of the GDPR it transpires that the lead data protection authority has a general competence over cross-border data processing, including judicial proceedings for the breach of GDPR, and therefore, other data protection authorities have a more limited power to act in that regard. The powers of national data protection authorities are therefore expressly curtailed as regards cross-border processing with a view to enabling the lead data protection authority to exercise its tasks in this regard.  

Held: The GDPR permits the data protection authority of a member state to bring proceedings before a court of that state from an alleged infringement of GDPR with respect to cross-border data processing, despite it not being the lead data protection authority with a general power to commence such proceedings, provided it does so where the GDPR has specifically conferred competences.  

 

Court: Court of Justice of the European Union  

Case: C-414/20 - MM 

Date: 13 January 2021 

Facts: Criminal proceedings were initiated in Bulgaria against 41 individuals for drug trafficking crimes. Sixteen of them absconded. The individual, MM, had absconded and a European arrest warrant was issued for his arrest. MM was subsequently arrested in Spain, surrendered to the Bulgarian authorities and a court ordered that he be placed in provisional detention. The Specialised Criminal Court, Bulgaria has since asked the Court of Justice whether a European arrest warrant must be regarded as being invalid when it is not based on a national arrest warrant or any other judicial decision having the same effect, whether the national court has jurisdiction to review the validity of the conditions of the warrant; and whether a finding that the warrant was a breach of EU law has the effect of releasing a person in provisional detention.  

Held: the status of the issuing judicial authority is not conditional on the availability of a review by a court of the decision to issue the European arrest warrant and the national decision upon which that warrant is based. The European arrest warrant is founded upon mutual recognition and reciprocal trust between member states that the warrant has being issued in compliance with the minimum requirements. A measure which serves as the basis for a European arrest warrant must preclude equivalent legal effects to a national arrest warrant. It does not appear that the European arrest warrant at issue has its legal basis in ‘an arrest warrant or any other enforceable judicial decision having the same legal effect’ and must be regarded as invalid. It is however solely for the national court, having jurisdiction, to determine what consequences the absence of a valued national arrest warrant may have on the decision to place and then keep a person who is the subject of a criminal prosecution in provisional detention.  

  

Court: Court of Justice of the European Union  

Case: C-63/19 - Commission v Italy  

Date: 14 January 2021 

Facts: In 1996 the European Council authorised Italy to apply a reduction in the rate of excise duty on petrol until 31 December 2006 in the Autonomous Region of Friuli Venezia Giulia, Italy with the intention of counteracting the practice of residents refuelling in neighbouring Slovenia. After 31 December 2006, the residents continued to benefit from reduced fuel prices most recently based on a regional law whereby service stations grant residents reductions in fuel prices and the regional administration refunds the operators for the equivalent amount. The European Commission claims that the legislation results in an unauthorised reduction, in the form of a refund of the excise duty contrary to the Energy Taxation Directive which establishes minimum excise rates. 

Held: To amount to a refund, there must be a real link between the amounts refunded to service station operators and the revenue collection of excise duties. The court held that the Commission has not established that, by introducing the contribution system at issue, the Italian Republic has introduced a reduction in excise duty in the form of a refund of the amount of tax or that the member state has failed to fulfil its obligations under the directive. 

 

Court: Court of Justice of the European Union  

Case: C-393/19 - Okrazhna prokuratura Haskovo and Apelativna prokuratura Plovdiv v OM 

Date: 14 January 2021 

Facts: OM was employed by a transport company established in Turkey as the driver of a freight lorry to make the journey from Turkey to Germany. On 11 June 2018 he illegally transported 3000 antique coins in return for payment. The coins were discovered at the Bulgarian border and OM was convicted of aggravated smuggling. The Bulgarian Court asks the Court of Justice whether the Charter of Fundamental Rights precludes applicable Bulgarian legislation which provides for the confiscation of the means of transport even where it belongs to a party acting in good faith, the lorry driver’s employer in this case.  

Held: The aim of the Bulgarian legislation is to prevent the unlawful importation of goods into the country. However, since the third party did not know of the crimes, it would be disproportionate and an intolerable interference impairing on the party’s right to property to confiscate the lorry. A national law which permits the confiscation of an instrumentality used to commit smuggling where it belongs to a third party acting in good faith, is contrary to EU law.  

 

Court: Court of Justice of the European Union  

Case: C-441/19 - TQ  

Date: 14 January 2021 

Facts: In June 2017, TQ, an unaccompanied minor applied for a fixed-term residence permit in the Netherlands having travelled following the death of his carer in Sierra Leone. The State Secretary for Justice and Security held that TQ was not eligible for a fixed-term residence permit which constituted a return decision. In appealing the decision, it was argued that in considering an application regarding a minor under the age of 15 when the application is made, an investigation is carried out and a decision made. For minors aged 15 or more, no investigation is carried out and the authorities appeared to wait until the minor turned 18, implicitly tolerating the minor’s residence. The Court sought to clarify the distinction drawn between unaccompanied minors over 15 and those under the age of 15.  

Held: Where a member state intends to issue a return decision against an unaccompanied minor, it must consider the best interests of the child. A member state may not distinguish between unaccompanied minors solely based upon the criterion of their age. 

 

Court: Court of Justice of the European Union  

Case: C-872/19 - Bolivarian Republic of Venezuela v Council of European Union 

Date: 20 January 2021 

Facts: On 13 November 2017, the Council of the European union adopted Regulation 2017/2063 concerning restrictive measures in view of the situation in Venezuela. On 6 February 2018, the Venezuelan government brought an action for annulment of the Regulation in which it was subsequently held that the Venezuelan government had failed to demonstrate that it was directly concerned by the measures within the meaning of Article 263 TFEU. 

Held: Advocate General proposed that the Court of Justice should rule that the General Court erred in law in finding that the proceedings were inadmissible for lack of legal standing on the part of the appellant. The appellant is a legal person for the purposes of Article 263 TFEU and the measures implemented were found to have direct concern. The proceedings should be readmitted for consideration by the General Court.  

 

Court: General Court of the European Union  

Case: T-328/17 Halloumi v EUIPO  

Date: 20 January 2021 

Facts: The proprietor of the collective mark ‘HALLOUMI’ brought proceedings against the registration as an EU trademark of ‘BBQLOUMI’ 

Held: There was no likelihood of confusion between the two words, the likelihood of confusion presupposes that the marks at issue are identical or similar and the goods/services are identical or similar. There is no likelihood of confusion in respect of the goods/services of ‘meat extracts’ and the registered mark. There is a low degree of similarity due to the addition of ‘BBQ’ to the extent that it is unlikely to contribute to the existence of a likelihood of confusion. The court held that there is no likelihood of confusion as regards commercial origin. 

 

 

Court: General Court of the European Union  

Case: T-9/19 - ClientEarth v EIB 

Date: 27 January 2021 

Facts: The Curtis project sought EIB financing, which was subsequently approved by resolution, providing €60 million. ClientEarth, a non-governmental organisation for the protection of the environment, submitted a request to the EIB for internal review in accordance with the Aarhus Regulation. On 30 October 2018, the EIB refused the request for internal review on the basis that there was no ‘administrative act’ to review. ClientEarth brought an action before the General Court arguing that when adopting the contested act, the EIB misapplied the conditions necessary for the act to be classified as an administrative act. The second argument put forward was that there was a breach of the obligation to state reasons.  

Held: The court held that the reasons set out in the contested act were sufficient to enable the applicant to know the reasons why the EIB had rejected the request for internal review of the resolution. The concept of ‘a measure of individual scope under environmental law’ must be interpreted broadly to cover any measure of individual scope subject to requirements under secondary EU law which, regardless of their legal basis, are directly aimed at achieving the objectives of EU Environmental policy. The resolution at issue was indeed a measure of individual scope adopted under environmental law within the meaning of the Aarhus regulation.   

 

February 2021

Court: Court of Justice of the European Union  

Case: C-481/19 - DB v Commissione Nazionale per la Società e la Borsa 

Date: 2 February 2021 

Facts: Italy’s National Companies and Stock Exchange Commission imposed penalties totalling €300,000 on DB. On 16 February 2018, the court referred a question of Italian law around the penalisation of anyone failing to comply with a request. The question raised surrounded the lawfulness under the Charter of Fundamental Rights of the EU, and the compatibility of the right to remain silent with a penalisation of anyone who fails to respond to a request for information in a timely manner.  

Held: the Court held that citizens have a right under the Charter to remain silent which lies at the heart of the notion of a ‘fair trial’. However, the right to remain silent cannot justify every failure to cooperate on the part of the person concerned with the competent authorities such as refusing to appear at a hearing or using delaying tactics. There is no express liability where a person remains silent, and therefore ultimately it is for member states to ensure that natural persons cannot be penalised for refusing to provide answers to the competent authority.  

 

Court: Court of Justice of the European Union  

Case: C-637/18 - Commission v Hungary 

Date: 3 February 2021 

Facts: The Commission brought action on the basis that Hungary had failed to fulfil several of its obligations on air quality. The Commission criticised the systematic and persistent exceeding of the daily limit for particulate matter from 1 January 2005 in the Budapest region and Sajó Valley, and from 11 June 2011 in the Pécs region.  

Held: The Court found that the exceeding of the limits on particulate matter is sufficient for a finding to be made that there has been a failure to fulfil obligations in that regard. It held that member states must draw up air quality plans and ensure that the exceedance period is kept as short as possible. Hungary manifestly failed to adopt appropriate measures in good time to ensure the period of exceedance of the limit values for particulate matter was kept as short as possible.  

 

Court: Court of Justice of the European Union  

Case: C-555/19 - Fussl v SevenOne Media GmbH 

Date: 3 February 2021 

Facts: Fussl operates a network of fashion shops in Austria and Germany. In 2018, Fussl concluded a contract with SevenOne to broadcast localised television advertising solely in the Land of Bavaria during SevenOne’s national broadcasts. SevenOne refused to perform the contract on the basis of a German state treaty enacted in 2016 which has prohibited television broadcasters from inserting regionally-limited television advertising into their broadcasts. The conformity of this State treaty provision with EU law has been brought into question.  

Held: The specific matter is not covered within the articles of the Audio-visual Media Services Directive. The court noted the prohibition as a restriction on the fundamental freedom to provide services under Article 56 TFEU. A less restrictive measure may apply, depending on the interpretation of the clause, but that is for the state court to determine. Article 11 does not preclude a prohibition of regional advertising so such measures may be enacted in the public interest. However, it is ultimately for the national court to ascertain whether the situation of national broadcasters or providers is significantly different depending on the exact situation. 

 

Court: Court of Justice of the European Union  

Case: C-155/19 - Federazione Italiana Giuoco Calcio v De Vellis Servizi Globali Srl 

Date: 3 February 2021 

Facts: The Federazione organised a negotiated procedure for the award of a contract for porterage services. At the end of the procedure one of the tenderers were invited to participate but to whomever the contract was not awarded brought an action to challenged the detailed rules on the procedure’s conduct. The Tribunale upheld the action and annulled the award of the contract. The question at law surrounded whether the FIGC should be classified as a body governed by public law and therefore was subject to the public contract rules. 

Held: The Court concluded that as the tasks assigned to the federations did not appear to be of industrial or commercial character so was acting in the general interest. The Court identified that the setting of sporting rules differed to the regulation of day to day organisation/practice of the sports. Therefore, a rebuttable presumption exists that it is not subject to the management supervision of a public authority.  

 

Court: Court of Justice of the European Union  

Case: T-259/20 - Ryanair DAV v Commission 

Date: 17 February 2021 

Facts: In March 2020 France notified the European Commission of an aid measure, the deferral of the payment of civil aviation tax and solidarity tax on tickets due to the Covid-19 pandemic. The payments would be delayed until 1 January 2021 and then spread over 24 months. In its decision on 31 March 2020 the Commission classified the deferral as state aid compatible with the internal market (aid to make good the damage caused by natural disasters or exceptional circumstances). Ryanair brought an action to annul that decision. 

Held: The General Court confirms that the Covid-19 pandemic and measures taken to deal with it together constitute an exceptional circumstance which has caused economic damage to the airlines operating in France. The limitation of the deferral to airlines with a French licence is appropriate for achieving the objective of making good the damage caused by the exceptional occurrence. The objective of the deferral of the payment satisfied the requirements of the derogation in Article 107(2)(b) TFEU.  

 

Court: Court of Justice of the European Union  

Case: T-238/20 - Ryanair DAV v Commission 

Date: 17 February 2021 

Facts: In March 2020 Sweden notified the European Commission of an aid measure in the form of a loan guarantee scheme aimed at supporting airlines holding a Swedish operating licence due to the Covid-19 pandemic. In its decision on 11 April 2020 the Commission classified the deferral as state aid compatible with the internal market (aid to make good the damage caused by natural disasters or exceptional circumstances). Ryanair brought an action to annul that decision.  

Held: The General Court confirms that the Covid-19 pandemic and measures taken to deal with it together constitute an exceptional circumstance to remedy the serious disturbance in the Swedish economy caused by the Covid-19 pandemic and the adverse impact on the aviation sector in Sweden. The court found that the aid scheme did not go beyond that necessary to achieve the stated objective of the Swedish authorities and was proportionate as the airlines eligible (those with a Swedish licence) were the ones contributing most to Sweden’s economy. The objective of the deferral of the payment satisfied the requirements of the derogation in Article 107(2)(b) TFEU. 

 

Court: Court of Justice of the European Union  

Case: C-940/19 - Les chirurgiens-dentistes de Francen and Others v Ministre des Solidartés et de la Santé 

Date: 25 February 2021 

Facts: A dispute arose between the French Health Ministry and the Prime Minister relating to the regulatory measures concerning access to healthcare professions. The French Council of State asked the Court of Justice to rule on the question whether the directive on the recognition of professional qualifications precludes a member state from introducing the possibility of partial access to one of the professions covered by the mechanism for automatic recognition under the directive.  

Held: The Court identified that the directive sets out a system of automatic recognition based on coordinated training conditions. However, it is the professionals that benefit from the automatic recognition of professional qualifications and not the professions themselves which are excluded from partial access. 

Member states should be able to refuse partial access in particular in respect of patient safety or public health implications. Such partial access satisfies the general objective of the abolition of obstacles to free movement and where the differences in the professions between the individual’s home member state are so large that a full programme of training would be required.  

In the absence of partial access, professionals who are covered by a similar profession but do not exactly correspond would potentially continue to face obstacles to mobility.  

Professionals benefitting from the automatic recognition of their professional qualifications are to have access to all of the activities covered by the profession in the member state and are therefore not concerned by partial access. However, this does not imply that the professions are not concerned by partial access.  

The directive does not preclude legislation allowing for the possibility of partial access to one of the professions.  

 

Court: Court of Justice of the European Union  

Case: C-821/19 - Commission v Hungary 

Date: 25 February 2021 

Facts: Through legislative reform in 2018 Hungary made the conditions for accessing international protection procedures more stringent. Hungary introduced measures which determined a person’s transit through a safe country as a ground for inadmissibility, and criminalised the organising activities intended to enable persons to initiate international protection criteria where they do not fulfil the national criteria.  

The Commission brought an action for the failure to fulfil obligations as a consequence of Hungary’s introduction of these measures.  

Held: The Court had already identified the ground for inadmissibility to be unlawful. Consequently, the Court declared that in its introduction of the ground for inadmissibility, Hungary had failed to fulfil its obligations under the Procedures Directive.  

The criminalisation of the organising activity constitutes an unjustified obstacle to the exercise of the rights guaranteed by EU legislation concerning the assistance for applications for international protection and therefore constitutes a failure to fulfil the obligations under that legislation.  

 

Upcoming Judgments: 

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  • Wiener Landesregierung  

  • Prokuratuur 

  • A.B e.a  

  • Commission v Italy 

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