(AGENPARL) - Roma, 5 Settembre 2023 - (AGENPARL) – mar 05 settembre 2023 Newsletter
Weeks XXXVI – XXXVII 4th to 15th September 2023
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Week XXXVI– 4th to 8th September
Jacques René
Tuesday 5th September
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Judgment in Case C-137/21 Parliament v Commission (Visa exemptions for
nationals of the United States)
(Area of Freedom, Security and Justice)
The question whether nationals of a given third country need a visa when crossing the
external borders of a Member State is governed in a uniform manner at EU level. The
EU legislature, namely the European Parliament and the Council, adopted a regulation
listing the third countries whose nationals require a visa and a list of those whose
nationals are exempt from it.
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In the event that a third country whose nationals are exempt from the visa
requirement decides to subject the nationals of one or more Member States to such
an obligation, the regulation provides for a ‘reciprocity mechanism’, structured in
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several stages, which makes it possible to act in solidarity at the EU level. Some of
these actions are delegated to the Commission, such as the temporary suspension of
exemption from the visa requirement.
United States nationals benefit from such an exemption. However, given that that
third country made Bulgarian, Croatian, Cypriot and Romanian nationals subject to a
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submitting a similar request in 2017, to temporarily suspend that exemption.
visa requirement, the Parliament called on the Commission, in October 2020, after
unless otherwise
stated.
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for details of
other cases.
The Parliament took the view that under the regulation, the Commission was obliged
to do so. The Commission considered it inappropriate to suspend, at that stage, the
exemption at issue, in particular because of the harmful political and economic
consequences that such a suspension might entail for the Union. That led the
Parliament to bring an action for failure to act against the Commission before the
Court of Justice of the European Union.
Background Documents C-137/21
There will be a press release in this case.
Communications Directorate
Press and Information unit
curia.europa.eu
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Weeks XXXVI – XXXVII 4th to 15th September 2023
Tuesday 5th September
Judgment in Case C-689/21 Udlændinge- og Integrationsministeriet (Perte de la
nationalité danoise)
(Citizenship of the Union)
The daughter of a Danish mother and an American father has held, since her birth in
the United States, Danish and American nationality. After reaching the age of 22, she
applied in Denmark to retain her Danish nationality. The competent authority
informed her that she had lost Danish nationality at the age of 22.
According to Danish law, a person born abroad who has never lived in Denmark and
who has also not resided there in circumstances indicating a sufficiently close
attachment to that country is to lose his or her Danish nationality upon reaching the
age of 22, unless he or she would thereby become stateless. The person concerned
may apply to retain his or her nationality, but only between his or her 21st birthday
and 22nd birthday. Failing that, he or she may apply only for naturalisation, albeit
under less stringent conditions for former Danish nationals.
The applicant in the main proceedings has brought an action for annulment of the
Danish authorities’ decision. Those proceedings are pending before the High Court of
Eastern Denmark, Denmark, which asks the Court of Justice about the compatibility of
the Danish legislation with EU law.
Background Documents C-689/21
There will be a press release in this case.
Wednesday 6th September
General Court
Judgments in Cases T-270/22 Pumpyanskiy v Council and T-272/22 Pumpyanskaya
v Council
(Restrictive Measures)
Since the beginning of Russia’s war against Ukraine in February 2022, the Council has
included on the lists of restrictive measures members of the government, banks and
influential businessmen who support, benefit from or provide a substantial source of
income to the Government of the Russian Federation.
Mr Dmitry Pumpyanskiy, Chairman of the Board of Directors of PJSC Pipe Metallurgic
Newsletter
Weeks XXXVI – XXXVII 4th to 15th September 2023
Company (TMK) and of the Board of Directors of the Sinara Group, was added to the
list on the grounds, first, that he supported the authorities of the Russian Federation
and State undertakings and, second, that he is an influential businessman engaged in
activities in economic sectors which constitute a substantial source of income for the
Government of the Russian Federation.
Mrs Galina Evgenyevna Pumpyanskaya is also on the list of restrictive measures in her
capacity as Mr Pumpyanskiy’s wife and Chairwoman of the Management Board of the
BF Sinara Foundation.
They have brought actions against these decisions before the General Court of the
European Union.
Background Documents T-270/22
Background Documents T-272/22
There will be one press release covering both cases.
Wednesday 6th September
General Court
Judgment in Case T-600/21 WS and others v Frontex
(Law governing the institutions)
In 2016, several Syrian refugees arrived on the Greek island of Milos. After being
transferred to the island of Leros, they expressed their wish to apply for international
protection.
However, following a joint return operation led by the European Border and Coast
Guard Agency (Frontex) and Greece, they were transferred to Turkey. From there they
travelled to Iraq, where they have been living ever since.
When their complaints to Frontex’s Fundamental Rights Officer about their
refoulement to Turkey were unsuccessful, the refugees applied to the General Court of
the European Union for compensation. They are claiming more than €96,000 for
material damage and €40,000 for non-material damage, due to Frontex’s alleged
unlawful conduct before, during and after the return operation.
In their view, if Frontex had not breached its obligations to protect fundamental rights
in the context of the return operation, they would not have been unlawfully returned
to Turkey and would have obtained the international protection to which they were
entitled, given their nationality and the situation in Syria at the material time Frontex
allegedly violated the principle of non-refoulement, the right to asylum, the ban on
collective expulsions, the rights of the child, the ban on degrading treatment, the right
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Weeks XXXVI – XXXVII 4th to 15th September 2023
to sound administration and the right to an effective remedy.
Background Documents T-600/21
There will be a press release in this case.
Thursday 7th September
Judgment in Case C-216/21 Asocia?ia “Forumul Judec?torilor din România”
(Principles of Community Law)
In 2019, the Romanian Superior Council of Magistracy (CSM) approved a reform of the
procedure for promoting judges to higher courts. The association “Forum of Judges of
Romania” and an individual are challenging this reform before the Court of Appeal of
Ploie?ti (Romania).
The applicants in the main proceedings submit that replacing the old written tests with
an assessment of the candidates’ work and conduct by the president and members of
the higher court concerned would make the promotion system subjective and
discretionary.
The Ploie?ti Court of Appeal asked the Court of Justice whether such a reform was
compatible with the principle of the independence of judges.
Background Documents C-216/21
There will be a press release in this case.
Thursday 7th September
Judgment in Case C-162/22 Lietuvos Respublikos generalin? prokurat?ra
(Approximation of Laws)
A prosecutor from a Lithuanian public prosecutor’s office has been dismissed from his
post by the Lithuanian Prosecutor General’s Office. This disciplinary sanction was
imposed on him because he had unlawfully provided information to a suspect and his
lawyer during an investigation. He is challenging this decision before the Lithuanian
courts.
The prosecutor’s alleged misconduct was established on the basis of data stored by
electronic communications service providers. In his view, the use of data enabling the
source and destination of a telephone call from a suspect’s fixed or mobile telephone
Newsletter
Weeks XXXVI – XXXVII 4th to 15th September 2023
to be identified in cases relating to misconduct constitutes unjustified interference
with the fundamental rights enshrined in EU law.
According to the Court’s case law on the conditions for access to electronic
communications data set out in the Directive on privacy and electronic
communications, combating serious offences may justify interference with the
fundamental rights enshrined in Articles 7 and 8 of the Charter of the European Union.
In this case, the Supreme Administrative Court of Lithuania, hearing the appeal, wishes
to know, in substance, whether the use, for the purposes of an investigation into
service misconduct related to corruption, of personal data relating to electronic
communications which have been stored by electronic communications service
providers and which have subsequently been made available to the competent
authorities for the purposes of combating serious crime, is compatible with that
directive.
Background Documents C-162/22
There will be a press release in this case.
Thursday 7th September
Judgment in Case C-226/22 Nexive Commerce and Others
(Freedom to provide services)
Nexive Commerce Srl and other economic operators providing express courier
services brought applications before the Regional Administrative Court for Lazio (Italy)
for the annulment of certain the Italian Communications Supervisory Authority, which
identified them as being liable for the contribution to the costs relating to the
operation of AGCOM as the national regulatory authority responsible for the postal
sector.
They also set out the methods for calculating the contribution and the amount for the
years 2017, 2018 and 2019. Under the applicable Italian law, the universal postal
service providers and persons holding a licence or general authorisation are liable for
this contribution. Indeed, the Directive on the development of postal services allows
Member States to make the granting of authorisations to operators in the postal
sector subject to the obligation to contribute financially to the operating costs of the
national regulatory authorities in the sector.
These appeals having been dismissed at first instance, Nexive Commerce e.a.
appealed to the Italian Council of State. This court referred questions to the Court of
Justice on the scope of the contribution to the financing of the “operating costs” of the
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Weeks XXXVI – XXXVII 4th to 15th September 2023
NRAs in the postal sector.
Background Documents C-226/22
There will be a press release in this case.
Week XXXVII – 11th to 15th September
Thursday 14th September
Judgment in Case C-27/22 Volkswagen Group Italia and Volkswagen
Aktiengesellschaft
(Consumer protection)
The principle of non bis in idem prohibits the joinder of criminal proceedings or
penalties for the same acts against the same person. This principle is enshrined in
Article 50 of the Charter of Fundamental Rights of the European Union (“Charter”). This
case is concerned with the cross-border application of that principle and the
difficulties it raises.
The Volkswagen group marketed worldwide 10.7 million diesel vehicles fitted with
devices which altered the measurement of pollutant emissions for the purposes of
their type-approval under European regulations. Seven hundred thousand of these
vehicles were sold in Italy.
On August 4, 2016, the Italian Competition Authority fined Volkswagen and its Italian
subsidiary €5 million on the grounds that the sale of these vehicles and the misleading
advertising of them – by highlighting their compliance with environmental regulations constituted unfair commercial practices. Volkswagen challenged before the Italian
courts the fine, which was the highest fine for such an infringement. Under Italian law,
such infringements and their sanction are administrative in nature.
Before the Italian courts could rule, the Brunswick Public Prosecutor’s Office, which
had instituted criminal proceedings in Germany against Volkswagen, notified
Volkswagen that it had been ordered to pay a penalty of €1 billion for the worldwide
marketing of the aforementioned vehicles and its advertising of them. The penalty
responded to the negligent behavior in installing the tricked devices. Volkswagen did
not contest the penalty and paid the fine on June 18, 2018.
On April 3, 2019, the Italian courts dismissed Volkswagen’s appeal, despite the fact
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Weeks XXXVI – XXXVII 4th to 15th September 2023
that it would have been ordered to pay the penalty in Germany, as they found that the
penalty imposed by the Italian competition authority had a different legal basis, so that
the non bis in idem principle did not represent any obstacle for the company to be
sanctioned in Italy.
Volkswagen appealed the judgment to the Italian Council of State, which has referred
several questions to the Court of Justice for a preliminary ruling on the application of
the non bis in idem principle to this case.
Background Documents C-27/22
There will be a press release in this case.
Thursday 14th September
Judgment in Case C-83/22 Tuk Tuk Travel
(Freedom to provide services)
In October 2019, a traveller purchased from the tour operator Tuk Tuk Travel a
package holiday for two people to Vietnam and Cambodia: departure from Madrid
(Spain) was on 8 March 2020, with the return scheduled for the following 24 March.
The traveller paid almost half the total price of the holiday. The contract provided
information about the possibility of cancelling before the departure date, subject to a
fee. On the other hand, it was silent as to the possibility of cancellation without charge
on account of exceptional and unavoidable circumstances at the destination, as
provided for in the Package Travel Directive.
On 12 February 2020, in view of the spread of the coronavirus in Asia, the traveller
informed Tuk Tuk Travel of his decision to cancel the contract and requested
reimbursement of all the sums to which he was entitled. The tour operator having
informed him that, after deduction of cancellation costs, only a small part of the
amount paid would be reimbursed, the traveller brought an action before the courts.
He alleges that he terminated the contract almost a month before the planned
departure date, citing force majeure: the spread of the coronavirus in Asia. The
traveller, who was not represented by a lawyer, sought only partial reimbursement of
the amount paid, as he considered that a quarter of this amount corresponded to
management costs incurred by Tuk Tuk Travel.
The Spanish judge hearing the case asked the Court of Justice to interpret the Package
Travel Directive. In particular, he questions whether it was possible, under the
Directive, to automatically grant the traveller reimbursement of all payments made,
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Weeks XXXVI – XXXVII 4th to 15th September 2023
where the traveller had terminated the contract due to exceptional circumstances. The
Spanish judge observed that this possibility would be contrary to fundamental
principles of Spanish procedural law.
Background Documents C-83/22
There will be a press release in this case.
Thursday 14th September
Judgment in Case C-113/22 TGSS (Refus du complément de maternité)
(Social policy)
In its judgment of 12 December 2019, the Court of Justice of the European Union held
that the pension supplement granted by Spain to mothers in receipt of an invalidity
pension when they have two or more children (biological or adopted) must also be
granted to fathers in a comparable situation. The national legislation reserving the
grant of that supplement to women alone constituted direct discrimination on
grounds of sex, contrary to the directive on equal treatment.
On the basis of this judgment, in November 2020 the father of two children asked the
Spanish social security system to recognise his right to the supplement to the absolute
permanent invalidity benefit that he had been receiving since November 2018. When
his application was rejected, he took his case to court. An initial judgment recognised
his right to the additional pension in question, while rejecting the claim for
compensation that the father had submitted at the same time. Both the father and the
Spanish authorities appealed against this judgment to the Superior Court of Justice of
Galicia (Spain).
That court wondered whether the systematic refusal to grant men – pending the
adaptation of the discriminatory Spanish legislation to the Court’s judgment of 12
December 2019 – the additional pension at issue, which obliges them to claim it in
court, should be regarded as discrimination distinct from the discrimination
highlighted in that judgment. It also queried whether, in the event of an infringement
of Union law being found, the father could be awarded additional compensation and
what that compensation would consist of.
Background Documents C-113/22
There will be a press release in this case.
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Weeks XXXVI – XXXVII 4th to 15th September 2023
Thursday 14th September
Opinion in Case C-115/22 NADA and others
(Approximation of laws)
A woman, who was a professional athlete from 1998 to 2015, was found guilty of an
anti-doping rules violation. In response, the Austrian national anti-doping authority
(Österreichische Anti-Dopingkommission, ÖADR) published her name, her rule
violation, and the period of suspension on its publicly accessible website. It also
declared all results that the athlete obtained between 10 May 2015 and the date of
entry into force of its decision as invalid, revoked any entry fees and/or prize money
and banned her from participating in sporting competitions of any kind for a period of
four years starting from 31 May 2021.
During the procedure before the ÖADR, the athlete had requested that the contested
decision would not be disclosed to the general public by means of an openly
accessible online publication. That request was rejected by the ÖADR in the contested
decision. Indeed, Austrian law requires decisions finding anti-doping rules violations to
be made available to the public, without any individualised proportionality review
when it comes to professional athletes. It is the Independent Anti-Doping Agency of
Austria (Nationale Anti-Doping Agentur, NADA) that carries out the publication. The
athlete submitted a request for review of the contested decision to the Independent
Arbitration Committee, Austria (Unabhängige Schiedskommission, USK). The USK
upheld the substantive findings of the ÖADR and confirmed the athlete’s anti-doping
rule violations and the sanction imposed. At the same time, it reserved its decision on
the athlete’s request to refrain from publishing the contested decision to the general
public.
The USK has doubts as to the compatibility with the GPDR, of the practice of disclosing
the athlete’s personal data to the general public by means of openly accessible online
publication on NADA’s website. It therefore decided to stay proceedings and to ask the
Court of justice for a preliminary ruling. In particular, USK asks whether the
information that a certain person committed a specific doping violation, as a result of
which that person has been banned from taking part in competitions constitute “data
concerning health” within the meaning of the GPDR. Moreover, it asks if the GPDR
precludes a national provision that provides for the disclosure of personal data of a
professional athlete relating to an anti-doping rule violation.
Background Documents C-115/22
There will be a press release in this case.
Newsletter
Weeks XXXVI – XXXVII 4th to 15th September 2023
HEARINGS OF NOTE*
Court of Justice
Tuesday 12th September: 09:30 – C-808/21 Commission v Czech Republic (eligibility and
membership of a political party) (Citizenship of the Union)
Tuesday 12th September: 09:30 – C-814/21 Commission v Poland (eligibility and
membership of a political party) (Citizenship of the Union)
General Court
Monday 11th September: 14:30 – T-282/22 Mazepin v Council (Restrictive Measures –
Ukraine)
Tuesday 12th September: 09:30 – T-289/22 Shuvalov v Council (Restrictive Measures –
Ukraine)
* This is a non-exhaustive list and does not include all the hearings over the next two
weeks.