(AGENPARL) – gio 15 giugno 2023 Newsletter
Weeks XXV – XXVI 19th to 30th June 2023
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Week XXV– 19th to 23rd June
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Thursday 22nd June
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Judgment in Joined Cases C-6/21 P Germany v Pharma Mar and Commission; and
C-16/21 P Estonia v Pharma Mar and Commission
(Public Health)
In the two joined appeals, the Federal Republic of Germany (Case C?6/21 P) and the
Republic of Estonia (Case C?16/21 P) ask the Court of Justice to set aside the judgment
of the General Court of the European Union of 28 October 2020, Pharma Mar v
Commission. In this judgment, the General Court had annulled Commission
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Implementing Decision C(2018) 4831 final of 17 July 2018 refusing to grant a marketing
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product for human use.
Background Documents C-6/21 P
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Background Documents C-16/21 P
There will be a press release in this case.
Thursday 22nd June
Judgment in Case C-660/21 K.B. et F.S. (Raising of its own motion a violation of
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stated.
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the rights of the defence – criminal law)
(Area of Freedom, Security and Justice)
On the evening of 22 March 2021, police officers noted the suspicious presence on a
company’s vehicle parking area of two individuals who were attempting to keep out of
for details of
the police officers’ sight. The officers observed that the fuel tank of a heavy goods
other cases.
vehicle parked there was open and that there were some jerry cans nearby. At 10.25
p.m., in the course of an on-the-spot investigation for theft of fuel, they questioned the
two suspects, K.B. and F.S., who were handcuffed to prevent any attempt to abscond.
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Weeks XXV – XXVI 19th to 30th June 2023
After questioning K.B. and F.S., the police officers advised a senior police officer, who
asked that the two persons questioned be immediately produced in order to be placed
in custody. The police officers then called on another senior police officer, who
attended the scene at 10.40 p.m. and searched the vehicle of K.B. and F.S. That senior
officer also asked them certain questions, which they answered. A search of their
vehicle revealed incriminating evidence, such as stoppers, a funnel and an electric
pump.
At 10.50 p.m., the Public Prosecutor’s Office was advised that F.S. and K.B. were being
placed in custody; they were notified of their rights at 11.00 p.m. and 11.06 p.m.,
respectively.
The referring court, which is trying K.B. and F.S. for offences of theft of fuel in
collusion, notes that certain investigative acts were carried out, and certain selfincriminating statements taken, before K.B. and F.S. were notified of their rights, as
provided for in Articles 3 and 4 of Directive 2012/13. Because of the delay in placing
the suspects in custody, advising the Public Prosecutor’s Office and notifying the
suspects of their rights, in particular the right to remain silent, the vehicle search, their
detention in custody and all the consequential acts should, in principle, be annulled.
The referring court states in that respect that, according to the case-law of the Cour de
cassation (Court of Cassation, France), save in insurmountable circumstances, any
delay in notifying the persons questioned of their rights or in informing the Public
Prosecutor’s Office constitutes a ground of invalidity of the measure placing those
persons in custody.
However, the Cour de cassation (Court of Cassation) has also decided that the trial
courts do not have the right to raise of their own motion a plea of invalidity of the
procedure, apart from lack of jurisdiction, on the ground that it is open to the accused
person, who has the right to be assisted by a lawyer when he or she appears or is
represented before a trial court, to raise such an invalidity, or to do so on appeal if he
or she did not appear or was not represented at first instance.
At the trial of K.B. and F.S., their respective counsel did not raise a plea of procedural
invalidity.
According to the referring court, it follows from that case-law of the Cour de cassation
(Court of Cassation) that it is not the criminal court that ensures the primacy and the
effectiveness of EU law for the litigant, but his or her lawyer. For that reason, in cases
involving petty crime and/or for individuals who are not assisted by a lawyer, the court
cannot ensure the effectiveness of EU law by finding, if necessary of its own motion,
that EU law has been infringed.
In that regard, the referring court refers to the Court’s case-law according to which, in
Newsletter
Weeks XXV – XXVI 19th to 30th June 2023
the absence of EU rules governing the matter, as in the present case, it is for the
domestic legal system of each Member State to prescribe the detailed procedural rules
governing actions intended to protect the rights of individuals, pursuant to the
principle of procedural autonomy. Provided, however, that they are not less
favourable than those governing similar situations subject to domestic law (principle of
equivalence) and do not make the exercise of the rights conferred by EU law
impossible in practice or excessively difficult (principle of effectiveness).
In the judgment of 14 December 1995, Peterbroeck, the Court ruled that EU law
precludes application of a domestic procedural rule whose effect is to prevent the
national court, seised of a matter falling within its jurisdiction, from considering of its
own motion whether a measure of domestic law is compatible with a provision of EU
law when the latter provision has not been invoked by the litigant within a certain
period.
In addition, the referring court refers to the Court’s case-law in the area of consumer
protection, where the Court has found that the national court is under an obligation to
examine of its own motion an infringement of Directive 93/13/EEC, in so far as such an
examination makes it possible to achieve the results prescribed by that directive.
That case-law recognises the national court’s status as an authority of a Member State
and its corresponding duty as a fully fledged actor in the transposition procedure for
directives, in a specific context where one party to the proceedings is in a weaker
position. That reasoning relating to consumers might well be transposed to the
accused in a criminal matter, who is not necessarily assisted by a lawyer in enforcing
his or her rights.
The referring court observes that if the Court decided that the prohibition on a court
raising of its own motion an infringement of a national provision designed to
transpose a directive is contrary to EU law, the national court would be able to ensure
the effectiveness of EU law, even where the litigant does not have a lawyer or where
the lawyer has not raised an infringement of EU law. In this instance, the referring
court states that, if it may raise of its own motion the late notification of the right to
remain silent, it will be able to annul the acts that are decisive for the purpose of
establishing the guilt of the accused, namely the vehicle search and the selfincriminating statements taken, and also the custody and the ensuing measures.
In those circumstances, the tribunal correctionnel de Villefranche-sur-Saône (Criminal
Court, Villefranche-sur-Saône, France) decided to stay the proceedings and to refer the
following question to the Court for a preliminary ruling:
‘Must Articles 3 (Right to information about rights) and 4 (Letter of Rights on arrest) of
[Directive 2012/13], Article 7 (Right to remain silent) of [Directive (EU) 2016/343], in
conjunction with Article 48 (Presumption of innocence and right of defence) of the
[Charter] be interpreted as precluding the prohibition on the national court raising of
Newsletter
Weeks XXV – XXVI 19th to 30th June 2023
its own motion a violation of the rights of the defence as guaranteed by [those
directives], more specifically in so far as it is prohibited from raising of its own motion,
with a view to the annulment of the procedure, a failure to give notification of the right
to remain silent at the time of the arrest or a late notification of the right to remain
silent?’
Background Documents C-660/21
There will be a press release in this case.
Thursday 22nd June
Judgment in Case C-579/21 Pankki S
(Approximation of Laws)
In the course of 2014, an employee and at the same time a customer of the bank
Pankki S learned that his own data had been consulted by other members of the
bank’s staff on several occasions between 1 November and 31 December 2013.
Having doubts about the lawfulness of those consultations, on 29 May 2018 the
employee, who had in the meantime been dismissed from his job at Pankki S, asked
Pankki S to disclose to him the identity of the persons who had consulted his data, the
exact dates of the consultations and the purposes of the processing of that data.
In its reply, Pankki S refused to disclose the identities of the employees in question on
the grounds that the information constituted those employees’ personal data.
Pankki S pointed out that a customer of the bank whose customer adviser was the
applicant was a creditor of a person who also bore the applicant’s surname. The bank
therefore wished to clarify whether the claimant and the debtor in question were one
and the same person and whether there might have been any inappropriate conflict of
interest relationship.
Pankki S added that the answer to this question required the data in question to be
processed, specifying that each member of the bank’s staff who had processed this
data had made a declaration to the internal audit department regarding the reasons
for this data processing. In addition, the bank stated that these consultations made it
possible to rule out any suspicion of a conflict of interest with regard to the applicant.
The applicant applied to the Finnish Data Protection Commissioner’s Office for an
order requiring Pankki S to provide him with the requested information. Since that
request was rejected, the applicant brought an action before the Administrative Court
of Eastern Finland asking the Court of Justice to interpret the General Data Protection
Regulation (GDPR) in that regard.
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Weeks XXV – XXVI 19th to 30th June 2023
Background Documents C-579/21
There will be a press release in this case.
Thursday 22nd June
Judgment in Case C-823/21 Commission v Hungary (Declaration of intent prior
to an asylum application)
(Area of Freedom, Security and Justice)
The Commission asks the Court to declare that, by making access to the international
protection procedure and the making of an application for international protection in
respect of third-country nationals present in the Hungarian territory, including at its
borders, subject to the requirement that they must first undergo a procedure at a
Hungarian diplomatic representation in a third country, Hungary has failed to fulfil its
obligations under EU law.
Under the rules on the right of asylum introduced in Hungary by Act LVIII of 2020,
which was adopted on a provisional basis but has subsequently been extended on
several occasions, persons wishing to seek asylum in Hungary must, with few
exceptions, first submit a letter of intent to the Hungarian Embassy in Belgrade or Kyiv,
and can only access the international protection procedure after a positive response
to that letter of intent and the issuance of an entry permit.
The Commission considers that that new asylum procedure is incompatible with
Article 6 of Directive 2013/32 on common procedures for granting and withdrawing
international protection, interpreted in the light of Article 18 of the Charter.
The right of ‘access to the procedure’, which is guaranteed by Article 6 of the directive,
implies first and foremost the possibility for third-country nationals present in the
territory of a Member State, including at its borders, to make an application for
international protection.
However, it follows from the applicable provisions of Act LVIII of 2020 that, if thirdcountry nationals present in Hungarian territory, including at its borders, express their
willingness to avail themselves of international protection, the Hungarian authorities
will not consider that declaration as the making of an application for international
protection within the meaning of Directive 2013/32.
The application will not be registered and the person will not be granted the rights to
which the applicant is entitled. Instead, in order to submit his or her application, the
Newsletter
Weeks XXV – XXVI 19th to 30th June 2023
person must leave the Hungarian territory, return to a third country and first undergo
a procedure at the Hungarian embassy in that country.
Background Documents C-823/21
There will be a press release in this case.
Thursday 22nd June
Opinion in Case C-281/22 G. K. e.a. (EPPO)
(Area of Freedom, Security and Justice)
The European Public Prosecutor’s Office (EPPO) has powers of investigation and
prosecution of crimes affecting the financial interests of the European Union. In this
case the Court is, for the first time, invited to interpret the legal instrument
establishing that Office and setting out the rules on its functioning, namely, the EPPO
Regulation.
The EPPO is, through its European Delegated Prosecutor in Germany (Munich),
conducting preliminary investigations against three persons who are accused of
having made false declarations in order to circumvent customs provisions when
importing biodiesel into the European Union, resulting in a loss of revenue of
approximately € 1,295,000. That alleged loss constitutes a financial interest of the
Union and thus falls within the jurisdiction of the EPPO.
Although the main investigation is taking place in Germany, the EPPO deemed
necessary to undertake a cross-border investigation in Austria. Accordingly, the
(German) handling European delegated Prosecutor assigned the search and seizure of
the accused’s property in Austria.
Under Austrian law, however, such an investigative measure requires prior judicial
authorisation. The assisting (Austrian) European delegated Prosecutor therefore
obtained judicial warrants to search the residential and business premises of the
accused persons for the seizure of potentially incriminating documents and hardware.
No prior judicial review of the requested search and seizure measures had been
sought before the German courts, even though this would be required in a
comparable domestic situation. Indeed, as a result of Germany’s implementation of
the EPPO Regulation, German judicial authorisation is not required for cross-border
investigations, if the investigation measure is to be conducted in a Member State
whose law also requires prior judicial authorisation. In that case, the court of that
other Member State is competent to authorise the investigation measure.
On 1 December 2021, the accused filed, before the Higher Regional Court Vienna
Newsletter
Weeks XXV – XXVI 19th to 30th June 2023
(Austria), appeals against the search warrants approved by four Austrian courts. They
submit that the search and seizure measures authorised were neither necessary nor
proportionate.
The Higher Regional Court has decided to refer questions to the Court of Justice,
essentially in order to learn whether it is authorised to conduct a full review (as it
would do in a purely domestic situation), or, whether its review should be limited to
procedural questions concerning the exercise of the cross-border investigation
measures at issue.
Background Documents C-281/22
There will be a press release in this case.
Thursday 22nd June
Opinion in Case C-588/21 P Public.Resource.Org et Right to Know v Commission
(Provisions governing the institutions – Access to Documents)
By their appeal, Public.Resource.Org, Inc. and Right to Know CLG, non-profit
organisations whose main focus is to make the law freely accessible to all citizens, seek
to set aside the judgment of the General Court of 14 July 2021, Public.Resource.Org
and Right to Know v Commission (T-185/19).
That judgment rejected as unfounded their action seeking the annulment of
Commission Decision C(2019) 639 final of 22 January 2019 refusing to grant them a
request for access to four harmonised technical standards (‘HTS’) adopted by the
European Committee for Standardisation (CEN).
The Court is being asked to rule on the issue whether HTS – which the Court has
already recognised as forming part of EU law and having legal effects – are
copyrightable; and whether the rule of law as well as the principle of transparency and
the right of access to documents, as enshrined in Article 15 TFEU, require that access
to HTS be condition-free and free of charge.
Background Documents C-588/21 P
There will be a press release in this case.
Newsletter
Weeks XXV – XXVI 19th to 30th June 2023
Week XXVI – 26th to 30th June
Thursday 29th June
Judgment in Case C-444/21 Commission v Ireland (Protection of Special Areas of
Conservation)
(Environment)
Extract from the Advocate General’s Opinion:
‘The living world is a unique and spectacular marvel. … We rely entirely on this finely
tuned life support machine and it relies on its biodiversity to run smoothly.’
Biodiversity not only has an intrinsic value, but it is also of utmost importance for
human survival. According to the World Economic Forum, the possible consequences
arising from biodiversity loss include, at least, food insecurity, exacerbation of climate
change and risks to health, business and culture.
The European Union recognises problems that the loss of biodiversity might bring.
Part of its fight to preserve biodiversity is the Habitats Directive.
The present infringement proceedings concern that directive. On the basis of Article
258 TFEU, the European Commission has brought an action against Ireland for failing
to fulfil its obligations under Articles 4(4) and 6(1) of the Habitats Directive.
This is the third infringement action which has been brought before the Court –
following the judgments of 5 September 2019, Commission v Portugal (Designation
and protection of special areas of conservation), and of 17 December 2020,
Commission v Greece – relating to the implementation of Articles 4(4) and 6(1) of the
Habitats Directive. Two other actions of a similar type are also pending before the
Court, and additional infringement procedures are ongoing.
Background Documents C-444/21
Thursday 29th June
Opinion in Case C-61/22 Landeshauptstadt Wiesbaden
(Approximation of Laws)
This request for a preliminary ruling concerns the validity of Article 3(5) of Regulation
2019/1157, which sets out the obligation to include, on a highly secure storage
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Weeks XXV – XXVI 19th to 30th June 2023
medium, an image of the fingerprints of the holder in any identity card newly issued by
the Member States.
The request has been made in the course of a dispute between RL and the
Landeshauptstadt Wiesbaden (State Capital Wiesbaden, Germany), concerning an
administrative decision by which the latter refused to issue an identity card without a
fingerprint image being stored in its chip.
Background Documents C-61/22
There will be a press release in this case.
HEARINGS OF NOTE*
Tuesday 20th June: 09:30 – T-186/22 BNP Paribas v ECB (Economic policy)
Tuesday 20th June: 09:30 – T-187/22 BPCE and Others v ECB (Economic policy)
Tuesday 20th June: 09:30 – T-188/22 Crédit agricole and Others v ECB (Economic policy)
Tuesday 20th June: 09:30 – T-189/22 Conféderation nationale du Crédit Mutuel and
Others v ECB (Economic policy)
Tuesday 20th June: 09:30 – T-190/22 Banque Postale v ECB (Economic policy)
Tuesday 20th June: 09:30 – T-191/22 Société générale v ECB (Economic policy)
Wednesday 21st June: 09:30 – T-182/22 Deutsche Bank and others v ECB (Economic
policy)
Monday 26th June: 09:30 – T-234/22 Ismailova v Council (Restrictive Measures –
Ukraine)
Tuesday 27th June: 14:30 – T-283/22 Moshkovich v Council (Restrictive Measures –
Ukraine)
Wednesday 28th June: 09:30 – T-248/22 Mordashov v Council (Restrictive Measures –
Ukraine)
* This is a non-exhaustive list and does not include all the hearings over the next two
weeks.