Dr Vincent Power Partner, EU, Competition & Procurement
WHAT HAPPENED IN EU LAW IN 2024?
Trying to understand what is happening in EU law in general, and EU competition law in particular, is like trying to paint a moving train. So much happens so quickly.
Before it is over, 2024 will probably see another 1,700 or so cases decided by the Court of Justice of the EU (the CJEU), thousands of cases on EU law decided by courts across the 27 Member States, and thousands of regulations, directives and decisions adopted by the EU institutions.
So, identifying some key highlights of 2024 is a challenge! Everyone would have different answers, but this article will attempt to answer the following four questions:
- What are some of the key EU law measures adopted in 2024?
- What were the key CJEU cases in 2024?
- Who are the new Commissioners who will set the tone of the EU over the next five years?
- What is the EU case of the year?
KEY EU LAW MEASURES OF 2024
The following is a non-exhaustive list of some of the most noteworthy pieces of EU legislation that have been introduced in 2024.
KEY EU LAW MEASURES OF 2024
The following is a non-exhaustive list of some of the most noteworthy pieces of EU legislation that have been introduced in 2024.
Company Law
Multiple-Vote Shares Directive
Directive (EU) 2024/2810 of the European Parliament and of the Council of 23 October 2024 on multiple-vote share structures in companies that seek admission to trading of their shares on a multilateral trading facility
Listing Directive
Directive (EU) 2024/2811 of the European Parliament and of the Council of 23 October 2024 amending Directive 2014/65/EU to make public capital markets in the Union more attractive for companies and to facilitate access to capital for small and medium-sized enterprises and repealing Directive 2001/34/EC
Corporate Sustainability Due Diligence Directive (CSDDD)
Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859
Consumer Protection
New Product Liability Directive
Directive (EU) 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC
Right to Repair (R2R) Directive
Directive (EU) 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC
Empowering consumers for the green transition
Directive (EU) 2024/825 of the European Parliament and of the Council of 28 February 2024 amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and through better information
Employment
Platform Work Directive
Directive (EU) 2024/2831 of the European Parliament and of the Council of 23 October 2024 on improving working conditions in platform work
Environment
Regulation on nature restoration
Regulation (EU) 2024/1991 of the European Parliament and of the Council of 24 June 2024 on nature restoration and amending Regulation (EU) 2022/869
Energy performance of buildings (recast)
Directive (EU) 2024/1275 of the European Parliament and of the Council of 24 April 2024 on the energy performance of buildings (recast)
Equality
Strengthened Equality Bodies
Council Directive (EU) 2024/1499 of 7 May 2024 on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in matters of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services, and amending Directives 2000/43/EC and 2004/113/EC
Financial services
Alternative Investment Fund Managers Directive (AIFMD II)
Directive (EU) 2024/927 of the European Parliament and of the Council of 13 March 2024 amending Directives 2011/61/EU and 2009/65/EC as regards delegation arrangements, liquidity risk management, supervisory reporting, the provision of depositary and custody services and loan origination by alternative investment funds
KEY EU CASES OF 2024
The CJEU usually finishes the year with a flourish and delivers some important judgments on the last day of term. As we go to press before year end, any list of key cases will be incomplete, but it is nonetheless interesting to select some highlights from the year.
KEY EU CASES OF 2024
The CJEU usually finishes the year with a flourish and delivers some important judgments on the last day of term. As we go to press before year end, any list of key cases will be incomplete, but it is nonetheless interesting to select some highlights from the year.
Citizens
- EU citizens residing in a Member State of which they are not nationals have the right to become a member of a political party. To deny them the right would breach EU law. EU citizens may stand in municipal and European Parliamentary elections: Case C-808/21 Commission v Czech Republic and Case C-814/21 Commission v Poland
- The designation of a third country as a safe country of origin must cover its entire territory: Case C-406/22 Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky
- The refusal by a Member State to recognise the change of first name and gender lawfully acquired in another Member State is contrary to the rights of EU citizens: Case C-4/23 Mirin
Competition
- Some FIFA rules on international transfers of professional footballers are contrary to EU law: Case C-650/22 FIFA
- Online accommodation reservation platforms: It was held that price parity clauses cannot, in principle, be classified as ‘ancillary restraints’ for the purposes of EU competition law: Case C-264/23 Booking.com and Booking.com (Deutschland)
- The exchange of information over a period of more than ten years between 14 credit institutions in Portugal could constitute a restriction of competition by object: Case C-298/22 Banco BPN/BIC Português and Others
- The European Commission must pay interest on fines it has unduly imposed in competition matters and which it has provisionally collected: Case C-221/22 P Commission v Deutsche Telekom
Consumers
- A price reduction announced in an advertisement must be calculated on the basis of the lowest price in the last 30 days: Case C-330/23 Aldi Süd
- A consumer, having booked a trip abroad, may sue the organiser before the court of the place of the consumer’s domicile: Case C-774/22 FTI Touristik
Data Protection
- GDPR - Member States may make provision for competitors of the person allegedly responsible for an infringement of the laws protecting personal data to challenge that infringement in court as a prohibited unfair commercial practice: Case C-21/23 Lindenapotheke
- A parliamentary committee of inquiry must in principle comply with the General Data Protection Regulation: Case C-33/22 Österreichische Datenschutzbehörde
Employment
- Frontier workers must enjoy the same social advantages as resident workers: Case C-27/23 Hocinx
- A pregnant worker must be afforded a reasonable time limit in order to be able to bring an action against her dismissal: Case C-284/23 Haus Jacobus
- A fixed-term worker must be informed of the reasons for the termination of his or her employment contract with a notice period where the provision of such information is required for a permanent worker: Case C-715/20 X
- A worker who was not able to take all of their days of paid annual leave before resigning is entitled to an allowance in lieu of that leave: Case C-218/22 Comune di Copertino
EU law
- The right to an effective remedy means that a Member State court is not required to apply a decision of its constitutional court that infringes EU law: Case C-792/22 Energotehnica
Intellectual property
- Member States must protect works of art in the EU, irrespective of the country of origin of those works or the nationality of the artist: Case C-227/23 Kwantum Nederland BV and Kwantum België BV
- The Directive on the legal protection of computer programs does not allow the holder of that protection to prohibit the marketing by a third party of software which merely changes variables transferred temporarily to a game console’s RAM: Case C-159/23 Sony Computer Entertainment Europe
- E-commerce: a Member State may not impose additional obligations on an online service provider established in another Member State: Case C-662/22 Airbnb Ireland
Public procurement
- Economic operators from a third country (i.e. a non-EU Member State) which has not concluded an international agreement on public procurement with the EU cannot claim equal treatment in this area: Case C-652/22 Kolin Inşaat Turizm Sanayi ve Ticare
- A tenderer who has been unlawfully excluded from a procurement procedure may claim damages for loss of opportunity: Case C-547/22 INGSTEEL
State aid
- The Court considers the nature of State aid, tax advantages and the requisite evidence in such cases: Case C‑465/20 Commission v Ireland
Tax
- Member State legislation which limits the deduction of interest paid in respect of an intra-group loan is compatible with EU law: Case C-585/22 Staatssecretaris van Financiën
Transport
- The shortage of airport staff for loading baggage, which caused a long delay of a flight, may constitute an "exceptional circumstance": Case C-405/23 Touristic Aviation Services
NEW COLLEGE OF COMMISSIONERS
A new College of Commissioners was approved by the European Parliament on 27 November 2024 and appointed by the European Council on 28 November 2024 for the period from 1 December 2024 to 31 October 2029.
The 54% of the Members of the European Parliament who voted for the new College were mainly the centre-right and centre-left groupings, as well as groupings which included some Greens and the right-wing Brothers of Italy.
The new College is headed by Ursula von der Leyen who is beginning her second term as President of the European Commission (the Commission).
It will probably be the most right-wing Commission in a long time. Of the 27 Commissioners, there is one far-right member and one ultra-conservative member. More than half are centre-right. This exemplifies the move to the right that we’ve seen over the last quarter century.
Ireland’s Michael McGrath has a serious, senior and challenging portfolio – he is the Commissioner for Democracy, Justice, and the Rule of Law. He could well be at the centre of some difficult challenges for the EU in a critically important role over the next five years.
The new Commissioners and their portfolios are available here.
EU CASE OF THE YEAR 2024
There is no shortage of contenders for the title of ‘EU Law Case of the Year’.
For a case which is multi-faceted, high profile and novel, the award goes to the CJEU’s judgment of 3 September 2024 in the Joined Cases C‑611/22 P and C‑625/22 P of Illumina v Commission (Illumina/Grail).
There are three key points to note about this judgment:
- Despite the Commission believing that it could utilise the EU’s Merger Control Regulation (139/2004/EU, the EUMR) to control, on competition grounds, some small-scale mergers, acquisitions and some joint ventures, the CJEU said that the EUMR does not allow this. The Commission was keen to control so-called “killer acquisitions” (particularly in the IT sector) where large, established operators would acquire new small, but promising, businesses and avoid merger control supervision because the targets had little or no turnover or market share. However, the EUMR was largely designed to deal with large-scale transactions involving parties with very high value sales/turnovers. So, the Commission sought to use a little-used provision in the EUMR to address this new problem — article 22. The Commission appeared comfortable with using it and the General Court upheld the Commission’s use of it in 2022. However, the CJEU looked at the history and evolution of the provision in the EUMR and found that it was an impermissible use of the provision as a matter of law even it made sense from a policy perspective.
- The case is a very useful lesson in how the CJEU interprets EU law. In the judgment (from paragraph 121 onwards), the CJEU explains how EU law should be interpreted and describes the four methods of interpretation: the literal, historical, contextual, and teleological methods.
- The case is a reminder to the incoming Commission that, while they may have ambitious plans (e.g. the creation of European Champions and so on), the Commission will be controlled tightly by the CJEU where there is a departure from the rules of EU law. This could be significant in any trade war or difficulty between the EU and, for example, the US, where the Commission and the EU would want to take a particular approach, but it is vital that the approach is grounded in EU law.
If one was to read just one CJEU judgment this year, then this is the judgment!