Summaries of judgments: Ryanair DAC/Commission

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment from General Court (Tenth Chamber, Extended Composition) of 17 February 2021, T – 259/20, Ryanair DAC/Commission

State aid – French air transport market – Deferral of payment of civil aviation tax and solidarity tax on airline tickets due on a monthly basis during the period from March to December 2020 in the context of the Covid-19 pandemic – Decision not to raise any objections – Aid intended to make good the damage caused by an exceptional occurrence – Free provision of services – Equal treatment – Criterion of holding a license issued by the French authorities – Proportionality – Article 107(2)(b) TFEU – Duty to state reasons

1. Facts

On 24 March 2020, French Republic notified the Commission of an aid scheme in the form of a deferral of the payment of civil aviation tax and solidarity tax on airline tickets due on a monthly basis during the period from March to December 2020, accordingly with Article 108(3) TFUE. This aid is designed to guarantee that the airlines holding an operating license issued in France are able to maintain sufficient liquidity until the restrictions, prohibitions on movement are lifted, and normal commercial activity is resumed. With this measure, the French Republic differs the referred tax payment until the 1 January 2021 and then spreads payments over a period of 24 months, until 31 December 2022.

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Options for keeping the Common Agricultural Policy within the Green Deal

by Rafael Leite Pinto (Master in EU Law – University of Minho)

1. Common Agricultural Policy (CAP) goals within the Green Deal

Presented in 2019, the Green Deal intends to pave the road for a sustainable European Union, cutting emissions by 40% until 2030 and achieving carbon-neutrality by 2050. At her first State of the Union speech, commissioner Ursula Von der Leyen updated the 2030 goal to 55%, following the Parliament’s goal of cutting emissions by 60%.  Within the Green Deal, the Commission revealed several strategic plans including the “Farm2Fork Strategy” and “Biodiversity Strategy”. These plans unveiled the most ambitious goals ever when it comes to reducing the environmental impacts of food production, such as a 50% reduction in pesticide use until 2030; 50% reduction in soil nutrient loss; 50% reduction of antibiotic use in animal farms; increase of the total share of organic farming land to 25%; establish 30% of land and sea as protected areas; plant 3 billion trees; halt and reverse the decline of pollinators; and invest 20 billion euros per year on biodiversity.

Despite the bold target setting, several issues related to the implementation of the necessary measures have been raised. Mainly the compatibility of the proposed Common Agricultural Policy post-2020 and the established goals. The first proposal by the Commission, published in 2018 showed some improvement in agri-environmental measures but was largely classified as insufficient[i],[ii] even for the less demanding goals at the time. In its “How the future CAP will contribute to the EU Green Deal” document, the Commission refrained from further developing the proposal, repeating the previously announced measures. That said, a later published Staff Working Document[iii] concluded that the proposed CAP could have a potential contributory effect to the Green Deal goals, as long as it was approved by the Parliament and the Council in the exact terms proposed, or more demanding ones. Problem is, historically, CAP proposals are diluted in the trilogue and this time was no different. At the end of 2020, a final agreement was reached, and the new CAP was voted in what has been classified by NGO’s as “a kiss of death” for nature in Europe[iv]. Both, the Parliament and the Council voted to soften the proposed agri-environmental measures leading to public outrage and campaigns such as “#votethisCAPdown” and “scrapthisCAP”. The World Wildlife Fund (WWF) accused the European Union’s institutions of ignoring the Green Deal and the evidence when it comes to agriculture’s environmental impacts[v]. For Greenpeace, the new CAP represents the death of small farmer’s and possibly the Green Deal[vi].

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Editorial of March 2021

José Manuel Fernandes, Member of the European Parliament and of the MFF and own resources negotiating team

The EU budget: a legal constellation for the recovery

I. Introduction

The approval of the Multiannual Financial Framework (MFF) is followed by an Interinstitutional Agreement (IIA) and a Decision on the EU system of Own Resources (ORD). Because of the pandemic, the Council, after Parliament’s insistence, and with strong support from Angela Merkel and Macron, put forward an historical and solidary decision: the use of a common guarantee based on the EU budget for the Commission to contract a debt of € 750 billion and establish the European Union Recovery Instrument through a Regulation[1] aiming to support the recovery in the aftermath of the COVID-19 crisis (NGEU). This decision was the only possible solution. Member States did not have the financial means to, for example, increase the EU budget. The decision increases the need for new own resources (sources of revenue). In fact, the NGEU has repercussions on the IIA, the ORD and the MFF 2021/2027 itself: these are all part of a negotiation “package”.

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Editorial of February 2021

Alessandra Silveira (Editor) and Alexandre Veronese (Professor at University of Brasília)

Thoughts regarding the right to deindexation and the weaknesses of the idea of “being forgotten” online – marking the Data Protection Day

28 January 2021 marks the 15th “Data Protection Day” and the 40th anniversary of the Council of Europe’s Convention 108 – the first international legal instrument regarding personal data protection – which was opened for signature on 28 January 1981.

What began as a European celebration is now a yearly commemoration all around the world. This year, to mark the occasion, the Ibero-American Network for Data Protection and the Council of Europe promoted an event targeted to Latin America. It is interesting to know that, coincidentally, the Brazilian Federal Supreme Court (STF) will hear on 3 February a case regarding a type of “right to be forgotten.” This right is the subject inspiring this essay. In light of this fact, it is essential to assess the (jus)fundamental dimension of the right to deindexation and the weakness of the idea of “being forgotten” online.[i]

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Short notes regarding the Portuguese presidency of the Council of the European Union: the agreement in principle between the EU and China

by Pedro Madeira Froufe (Editor)

Friday, 15 January, marked the first day of the second (relatively general) lockdown in Portugal. At the same time, Lisbon hosted a number of European Commissioners, including the President of the European Commission, Ursula Von der Leyen, for an in-person event with significant political relevance.

The Commissioner’s visit, signaling the beginning of a Member State’s presidency of the Council is, in fact, a tradition. In a manner carrying out some symbolism, this visit to Portugal, by accident coinciding with the second lockdown in the country, can also be seen as a sign of what is expecting the EU in the first semester of 2021. Notwithstanding, the priorities officially set out by the Portuguese presidency, the pandemic narrows down the possible paths. We have to overcome, to remake ourselves, and Europe must keep being Europe, deepening integration (especially now) with pride in the European project.

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Editorial of January 2021

Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor) 

Heresy, realpolitik, and the European Budget

1. The negotiation preceding the final approval of the 2021-2027 Multiannual Financial Framework (hereinafter, “MFF” or “Budget”) has marked by a significant number of twists, turns and eleventh-hour surprises. From the beginning this would always be a difficult negotiation. Being the first budget without the UK as a Member State, on one hand there was the need to show a united European Union after Brexit, but, on the other hand, there was the always unpleasant matter of redistributing the bill among remaining Member States.

2. In 2018, the Juncker Commission proposed a Budget with the value €1 135 Billion. Parliament considered the proposal not to be ambitious enough, an made a reinforced “counter-offer”, naming a much higher price for its consent in its November 2018 Interim Report on the Budget. However, in Council negotiations, the proposal was on track to be severely reduced. Plenty of factions were formed around the budget discussion such as the frugals (who wished to cap the budget at 1% of the GNI) or the friends of cohesion (who were not satisfied with cuts or shifting of funds from cohesion). Europe’s farming industry also lobbied against the decline in importance of the Common Agricultural Policy, and especially direct payments in the budget. At the end, things certainly seemed to be going into a pretty disappointing direction. The most likely result appeared to be a non-innovative budget pushed through after plenty of (arguably) petty squabbling.

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Summaries of judgments: Lietuvos geležinkeliai AB v. Commission

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment from General Court (First Chamber Extended Composition) of 18 November 2020, T-814/17, Lietuvos geležinkeliai AB v. Commission

Competition – Abuse of a dominant position – Rail freight market – Decision finding an infringement of Article 102 TFEU – Access by third-party undertakings to infrastructure managed by Lithuania’s national railway company – Removal of a section of railway track – Concept of “abuse” – Actual or likely exclusion of a competitor – Calculation of the amount of the fine – 2006 Guidelines on the method for setting fines – Remedies – Proportionality – Unlimited jurisdiction

Facts

Lietuvos geležinkeliai AB (LG) is a Lithuanian national railway company responsible for the management of the Lithuanian railway and provides rail transport services for freight and passengers. The Lithuanian undertaking Orlen Lietuva AB (Orlen) is specialized in refining crude oil and distributing refine oil products. Both had since 1999 an agreement according to which LG provided to the last undertaking transport services on the Lithuanian rail network, more precisely on the shorter route to Latvia. However, in 2008, following a commercial dispute between both undertakings regarding the rates paid by Orlen to LG for its transport services, Orlen explored the possibility of contracting the undertaking LDZ for rail transport services of its freight to Latvia.

In September 2008, LG suspended the traffic on a 19km long section of the shorter route to Latvia after identifying a defect in the rail track and later, in October 2008, LG proceeded with the complete removal of the entire track.

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Summaries of judgments: Privacy International | La Quadrature du Net and Others | R.N.N.S. and K.A. v Minister van Buitenlandse Zaken

Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
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Judgments of the Court (Grand Chamber) of 6 October 2020 Privacy International (C‑623/17, EU:C:2020:790) and La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791)

Reference for a preliminary ruling – Processing of personal data in the electronic communications sector – Providers of electronic communications services – Hosting service providers and Internet access providers – General and indiscriminate retention of traffic and location data – Automated analysis of data – Real-time access to data – Safeguarding national security and combating terrorism – Combating crime – Directive 2002/58/EC – Scope – Article 1(3) and Article 3 – Confidentiality of electronic communications – Protection – Article 5 and Article 15(1) – Directive 2000/31/EC – Scope – Charter of Fundamental Rights of the European Union – Articles 4, 6, 7, 8 and 11 and Article 52(1) – Article 4(2) TEU

Facts

Following its judgments of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), and of 2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788), the ECJ ruled on four requests for a preliminary ruling from jurisdictions in three Member States in proceedings concerning the lawfulness of legislation adopted by those Member States in the field of processing of personal data in the electronic communications sector, laying down in particular an obligation for providers of electronic communications services to retain traffic and location data for the purposes of protecting national security and combating crime.

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Summaries of judgments: Casino, Guichard-Perrachon and AMC v. Commission |Intermarché Casino Achats v. Commission | Les Mousquetaires and ITM Entreprises v. Commission

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgments from General Court (Ninth Chamber Extended Composition) of 5th October 2020: T – 249/17, Casino, Guichard-Perrachon et Achats Merchandises Casino SAS (AMC)/Comission, T- 254/17, Intermarche Casino Achats/Comission e T- 255/17, Les Mousquetaires e ITM Entreprises/Comission

Competition – Administrative Procedure – Decision ordering an inspection– Illegality of Article 20 of Regulation (CE) n.º 1/2003 – Right to an effective remedy – Principle of equality of arms – Obligation to state reasons for the inspection decisions – Right to inviolability of the home – Sufficient strong evidence – Proportionality – Refusal to protect the confidentiality of data relating to private life

Facts

After receiving information about the existence of change of information between several undertakings and associations of undertakings from the food and non-food distribution sector the Commission in the scope of the powers conferred by Article 20, paragraphs 1 and 4 of Regulation (CE) no 1/2003 adopted, in February 2017, several decisions requesting inspections to several undertakings.

Within the scope of those inspections, Commission visited the undertakings offices and obtained copies of the IT records.

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Editorial of December 2020

Alessandra Silveira, Joana Covelo de Abreu and Pedro Madeira Froufe (eUjust Jean Monnet Module Members - https://eujust.direito.uminho.pt). 

Brief insights on e-Justice paradigm and the de facto digitalization of justice in the European Union – answers for the plural crisis (the endemic and the pandemic)?

e-Justice is a paradigm that has been strengthened since the adoption of the latter Council’s e-Justice Action Plan and Strategy for the period of 2019-2023, where digital platforms and technological instruments are perceived as the way to further deepen reciprocal trust in the EU administration of justice (following previous arrangements made under e-Justice Action Plan 2014-2018).

However, as the Commission points out, the “[e]xperience with the COVID-19 crisis shows the need for justice systems [to] function under challenging circumstances” since, insofar, “[e]ffective access to justice in the EU is hampered by paper exchanges and the need to be physically present” and it needs to be scalable to a new development environment as “[d]igital technologies have the potential to make justice systems more accessible and efficient”.

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