OURT O USTIE CVRIA O TE EUROPEAN UNION ANNUAL REPORT 2018 JUDICIAL ACTIVITY curia.europa.eu COURT OF JUSTICE OF THE EUROPEAN UNION ANNUAL REPORT 2018 JUDICIAL ACTIVITY Synopsis of the judicial activity of the Court of Justice and the General Court Luxembourg, 2019 curia.europa.eu COURT OF JUSTICE GENERAL COURT L-2925 LUXEMBOURG L-2925 LUXEMBOURG LUXEMBOURG LUXEMBOURG TEL. +352 4303-1 TEL. +352 4303-1 The Court of Justice on the Internet: curia.europa.eu Printed by Court of Justice of the European Union in Luxembourg Manuscript completed in February 2019. Neither the institution nor any person acting on behalf of the institution may be held responsible for any use that may be made of the information contained herein. Luxembourg: Court of Justice of the European Union/Communications Directorate — Publications and electronic media unit © European Union, 2019 Reproduction is authorised provided the source is acknowledged. Any use or reproduction of photos or other material of which the European Union is not the copyright holder is prohibited without the authorisation of the copyright holders. Print QD-AP-19-001-EN-C ISBN 978-92-829-3102-8 ISSN 2467-0987 DOI 10.2862/814687 PDF QD-AP-19-001-EN-N ISBN 978-92-829-3099-1 ISSN 2467-1215 DOI 10.2862/900014 CONTENTS Foreword of K. Lenaerts, President of the Court of Justice of the European Union 8 CHAPTER I | THE COURT OF JUSTICE A| THE COURT OF JUSTICE: CHANGES AND ACTIVITY IN 2018 11 B| CASE-LAW OF THE COURT OF JUSTICE IN 2018 13 I. Withdrawal of a Member State from the European Union 13 II. Fundamental Rights 15 1. Possibility of relying on the Charter of Fundamental Rights of the European Union in disputes between individuals 15 2. Proceedings relating to the alleged breach of fundamental rights enshrined in the Charter 18 3. Principles and fundamental rights enshrined in the Charter 20 3.1. Right to respect for private and family life 20 3.2. Freedom of religion 21 3.3. Right to a fair trial 22 3.4. The principle ne bis in idem 24 III. Citizenship of the Union 27 1. Restrictions on the right of residence of Union citizens and their family members 27 2. Derived right of residence of third country nationals who are family members of a Union citizen 29 3. Extradition of a Union citizen to a third State 33 IV. Institutional provisions 35 V. EU law and national law 36 VI. Proceedings of the European Union 38 1. References for a preliminary ruling 38 2. Actions for annulment 41 VII. Freedoms of movement 45 1. Freedom of establishment 45 2. Freedom to provide services 46 3. Free movement of capital 49 Contents 3 VIII. Border controls, asylum and immigration 51 1. Border controls 51 2. Asylum policy 52 2.1. Refugee status 52 2.2. Handling of applications for international protection 53 2.3. Return decisions 57 3. Relations with Turkey 58 IX. Judicial cooperation in civil matters 59 1. Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 59 2. Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility 61 3. Regulation No 650/2012 on the creation of a European Certificate of Succession 64 X. Judicial cooperation in criminal matters 65 1. European arrest warrant 65 2. Common rules on criminal procedure 69 XI. Transport 70 XII. Competition 72 1. Article 101 TFEU 72 2. Concentrations 73 3. State aid 74 XIII. Fiscal provisions 78 XIV. Approximation of laws 79 1. Copyright 79 2. Intellectual property 80 3. Protection of personal data 83 4. Public procurement 86 5. Mutual assistance in the recovery of tax claims 88 6. Motor insurance 89 XV. Economic and monetary policy 90 4 Annual Report 2018 | Judicial Activity XVI. Social policy 92 1. Equal treatment in employment and social security 92 2. Protection of pregnant workers and workers who have recently given birth or who are breastfeeding 95 3. Protection of fixed-term workers 97 4. Organisation of working time 98 5. Right to paid annual leave 99 6. Coordination of social security systems 102 XVII. Consumer protection 104 XVIII. Environment 105 1. Protection of the marine environment 105 2. Protected sites 106 3. Release of genetically modified organisms (GMOs) into the environment 107 4. Aarhus Convention 108 XIX. International agreements 110 1. Interpretation of an international agreement 110 2. Establishment of an arbitral tribunal by international agreement 111 3. External competence of the European Union 112 C| ACTIVITY OF THE REGISTRY OF THE COURT OF JUSTICE IN 2018 116 D| STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE COURT OF JUSTICE 120 E| COMPOSITION OF THE COURT OF JUSTICE 150 CHAPTER II | GENERAL COURT A| ACTIVITY OF THE GENERAL COURT IN 2018 159 B| CASE-LAW OF THE GENERAL COURT IN 2018 161 Trends in the case-law 161 I. Institutional law 164 Contents 5 II. Competition rules applicable to undertakings 167 1. Developments in the area of Article 101 TFEU 167 2. Developments in the area of Article 102 TFEU 170 3. Developments in the area of mergers 172 4. Powers of inspection 174 III. State aid 175 1. Concept of State aid 175 (a) Determination of the amount of the aid — Concept of economic activity 175 (b) Selectivity in fiscal matters 176 (c) Imputability — Principle of the prudent private investor 177 2. Compatibility 178 3. Preliminary examination phase — Duty to investigate 179 4. Recovery 182 IV. Intellectual property — European Union trade mark 183 1. Power to alter decisions 183 2. Absolute grounds for refusal 183 3. Relative grounds for refusal 186 4. Revocation proceedings 188 (a) Genuine use 188 (b) Mark having become a common name in the trade 188 V. Common foreign and security policy — Restrictive measures 190 1. Ukraine 190 2. Egypt 193 3. Fight against terrorism 195 VI. Economic, social and territorial cohesion 196 VII. Health protection 197 VIII. Dumping 202 IX. Supervision of the financial sector 204 X. Public procurement by the institutions of the European Union 205 6 Annual Report 2018 | Judicial Activity XI. Access to documents of the institutions 206 1. Documents held by the EMA in the context of an application for marketing authorisation for a medicinal product 206 2. Documents from the Legal Service of an institution 207 3. Documents relating to the grant of a Euratom loan 208 4. Documents concerning an ongoing legislative procedure 209 5. Documents originating in a Member State exchanged in the context of the rules of the common fisheries policy 210 6. Documents relating to the allowances of Members of the Parliament 211 XII. Civil service 212 1. Psychological harassment 212 2. Occupational disease 215 3. Waiving of immunity from legal proceedings 216 4. Recruitment 216 XIII. Actions for damages 217 XIV. Applications for interim measures 221 C| ACTIVITY OF THE REGISTRY OF THE GENERAL COURT IN 2018 226 I. Contribution to the judicial activity 227 II. Support for consistency 228 III. A major reform: e-Curia mandatory in proceedings before the General Court 229 IV. Other forms of assistance to the Court 230 V. Administrative work 231 D| STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE GENERAL COURT 232 E| COMPOSITION OF THE GENERAL COURT 258 Contents 7 Foreword of K. Lenaerts, President of the Court of Justice of the European Union Foreword KOEN LENAERTS President of the Court of Justice of the European Union One hundred years ago, Europe was devastated by a particularly deadly conflict. Today, more than 500 million citizens of all generations are witnessing an unprecedented historical journey that has given rise to a Community and then a European Union, a carrier of fundamental values common to its Member States and a guarantor, through its institutions, of peace, freedom, democracy, the rule of law and respect for human rights. This tremendous achievement, patiently built over several decades, must remain engraved in our collective memory at this difficult time in European history. As I write this preface, the future remains uncertain about the outcome of the political process that began after the referendum on the United Kingdom’s membership of the European Union on 23 June 2016. The migration crisis affecting our continent is, beyond its dramatic human dimension, a source of sometimes intense tensions between Member States and fuels reflexes of identity withdrawal in many public opinions. Concerns about respect for the values inherent in the rule of law have also emerged in some Member States. These sources of crisis or tension have a direct impact on the activities of our institution. Over the past year, the Court of Justice has thus had to deal with the first questions relating to Brexit, including whether a Member State, after having notified the European Council of its intention to leave the Union, may revoke that notification. Asylum cases continue to flow in, draining in their wake issues that, under the guise of a highly technical nature, involve considerable human and societal challenges. Several cases, related to respect for the rule of law, have also been brought before the Court of Justice. In this troubled climate, the Court of Justice of the European Union must remain a stable and fundamental pillar of the European project. It is up to it to work, through the unwavering commitment of all its Members and staff, towards consolidating the founding values of this project. To contribute, through high-quality, effective and transparent justice, to restoring the confidence of all — citizens, workers, consumers, businesses, political decision-makers and public managers — in European integration.