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By the Editorial Team 

Dear readers,

Today we share with you material that was provided to us by the FULL-PROOF project, co-funded by the European Union, whose goal is to improve criminal justice procedures by tackling breaches of procedural rights at the early stages of justice processes. The project addresses the practical application of EU procedural rights, including the right to information, the right of access to a lawyer and the right to legal aid.

The infographic shown above was shared by the project in Portuguese, in an effort to cater to our Portuguese-speaking audience, and it states that access to a lawyer must be timely, effective and confidential. Under Directive 2013/48/EU, this right must be guaranteed prior to key procedural stages, in particular before questioning begins. Suspects and accused persons must be informed of these rights, asked whether they wish to speak to a lawyer, and assisted in making such contact. In certain cases, legal aid may be provided free of charge. And why is legal aid important? Firstly, to ensure a clear understanding of the situation; secondly, to enable informed decisions to be made; thirdly, to ensure adequate preparation for questioning; and fourthly, to guarantee the presence of a lawyer during questioning (in accordance with the applicable procedures under national law).

The team also sent us an animation which aims to show how access to a lawyer helps make procedural rights effective in practice. The video can be accessed here. A range of practical and educational resources produced by the project are available for consultation here.

We would like to thank the team for sending us this material and for raising awareness regarding such an important issue, and we strongly recommend that our readers visit the project’s website.

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Theodoros Zarkos, MSc, Medical Ethicist - Social Scientist - European Social Policy and Social Rights; Independent Researcher, Kiato, Greece

Photo credit: maido155, via Wikimedia Commons

The European Commission’s proposal for an EU KIDS Act, published on 17 September 2026, contains a provision that is easy to misread if it is viewed in isolation. Article 14 would create specific duties for AI companions and general conversational chatbots accessible to minors. Yet the proposal does not begin from an empty legal field. Online platforms, AI systems and the processing of children’s personal data are already governed by overlapping EU rules. The legal question is therefore not whether Article 14 “regulates AI for minors” for the first time, but what kind of legal layer it adds to the Digital Services Act (DSA), the Commission’s 2025 minors Guidelines, the AI Act and the GDPR.

Primary text: COM(2026) 681 final - proposed EU KIDS Act

From a horizontal child-safety duty to AI-specific obligations

The DSA already establishes a broad child-protection baseline. Article 28(1) requires providers of online platforms accessible to minors to put in place appropriate and proportionate measures ensuring a high level of privacy, safety and security for minors on their service. The provision is deliberately general. It does not attempt to enumerate every risky interface or emerging technology.

See: Digital Services Act, Article 28

The Commission’s 2025 Guidelines under Article 28(4) made that baseline more concrete. For AI features integrated into an online platform accessible to minors, the Guidelines recommend that the feature should not be activated automatically, that minors should not be encouraged or enticed to use it, that it should be easy to turn off, and that providers should assess risks before making it available. They also recommend visible warnings distinguishing AI interaction from human interaction. The Guidelines are non-binding; the Commission nevertheless uses them as a reference point when assessing compliance with Article 28(1).

See: Commission Guidelines on the protection of minors under the DSA (2025)

Article 14(2) of the proposed KIDS Act closely tracks part of that earlier guidance. Where an AI companion or general conversational chatbot is embedded in a social network, video-sharing service or online game, the host provider would have to ensure that the feature is not activated automatically or displayed prominently, that minors are not encouraged to use it, and that they can opt out easily at any time. In that limited deployment context, the proposal would move several safeguards from Commission guidance into an operative legislative rule. In doctrinal terms, this operates largely as specification of an existing DSA child-safety direction rather than the creation of an entirely new policy idea.

The new element is relational design itself

Other parts of Article 14 go further than the DSA guidance. Article 14(1)(a) would require providers to avoid design features and system behaviours that simulate interpersonal relations where they are likely to create emotional dependencies. It also imports the anti-addictive and excessive-use measures set out elsewhere in the proposal. The legal object is therefore not merely “harmful content” or “screen time”; it is a design pathway in which interpersonal simulation and engagement architecture may shape a minor’s continued use of the system.

The AI Act does not make this provision redundant. Article 5 of the AI Act prohibits certain manipulative or deceptive AI practices, and the exploitation of vulnerabilities including those related to age, when the statutory conditions concerning behavioural distortion and harm are met. Article 50, separately, requires transparency where natural persons interact directly with AI, unless the artificial nature of the interaction is obvious in the circumstances. These are important rules, but they perform different functions. Article 14(1)(a) would create a child-specific, ex ante design obligation directed at relational dependency. It does not depend on first establishing the full set of conditions required by the AI Act’s prohibited-practices regime.

See: Artificial Intelligence Act, Articles 5 and 50

Conceptually, the proposed text does not prohibit anthropomorphism, emotional tone or perceived closeness as such. Its trigger is narrower: interpersonal simulation that is likely to create emotional dependency. That wording leaves a substantial implementation question about how “likely” and “emotional dependency” will be operationalised in testing, supervision and enforcement.

What the empirical evidence does—and does not—show

An adolescent–parent experiment published online in September 2026 compared matched written chatbot replies using either a relational or a more transparent conversational profile. In 284 dyads, adolescents rated the relational profile more highly for such immediate qualities as anthropomorphism, emotional closeness and trust. Preference for that profile was associated with lower family-relationship quality and higher reported stress and anxiety. The experiment supports a design-sensitivity claim: conversational framing can affect immediate perceptions. It does not establish that chatbot use caused those family or mental-health circumstances, or that long-term dependence follows (Kim, Xie and Yang, 2026).

The evidentiary boundary is equally important in regulatory design. Self-selected adolescent narratives of overreliance and disengagement illuminate possible mechanisms, but cannot establish their frequency or a causal effect. In addition, children’s evolving capacities require age-sensitive safeguards rather than an assumption that maximal parental control is always desirable. An Article 14 assessment should therefore distinguish experimentally observed responses, plausible longer-term risks and independently justified rights protections (Namvarpour et al., 2026; UN Convention on the Rights of the Child, Articles 5 and 12).

Research source: Kim, Xie and Yang (2026)

Conversational memory: overlap with the GDPR, but a different legal function

Article 14(1)(b) introduces another distinctive rule. By default, a covered system should not use information or analysis derived from a minor’s prior interactions in subsequent interactions, subject to the exceptions set out in the provision. This is more precise than saying that the proposal simply “bans memory”. It establishes a default configuration concerning the reuse of prior-interaction information and analysis.

The GDPR is obviously relevant whenever conversational memory involves personal data. Its principles of lawfulness, fairness and transparency, purpose limitation and data minimisation continue to apply, as does Article 25 on data protection by design and by default. Article 8 addresses a child’s consent in relation to information society services where processing relies on consent, with Member States permitted to set the relevant age between 13 and 16. None of those provisions, however, is a general relational-safety rule for conversational systems.

See: General Data Protection Regulation, Articles 5, 8 and 25

The proposed KIDS Act operates at a different legal level. The GDPR asks whether and how personal data may lawfully be processed. Article 14(1)(b) would additionally regulate how a product for minors is configured to carry relational context from one interaction into the next. In practice, the two regimes may apply to the same technical feature, but they answer different legal questions.

Testing and monitoring create an ex ante / ex post cycle

Article 14 also proposes a governance cycle that is more specific than the horizontal baseline. Before placing a covered system on the market or putting it into service, providers would have to carry out state-of-the-art evaluation and testing for risks to minors’ health, safety, fundamental rights and physical, mental and emotional well-being and development, and implement appropriate safeguards. After market entry, providers would have to monitor harms and emerging risks and respond to serious incidents involving minors. The post-market monitoring duty contains a narrow exception for micro and small enterprises; it is not a general exemption from Article 14.

For children below 13, Article 14(1)(d) would also require access to be enabled and controlled through the guardian tools established by Article 20. That rule should not be confused with GDPR Article 8. One concerns access architecture and guardian controls under the proposed KIDS Act; the other concerns the validity of consent as a lawful basis for specified personal-data processing.

Existing enforcement is not evidence of developmental efficacy

An earlier enforcement example helps separate existing obligations from the proposal’s added design duties. In its decision of 10 April 2025 concerning Replika, the Italian data-protection authority examined transparency, legal bases and deficient age-assurance measures for a conversational service. The case shows that regulators can already intervene in access and data-governance arrangements involving minors without Article 14. It does not establish that relational chatbots cause long-term developmental harm or demonstrate that the proposed relational safeguards will be effective. Article 14 would extend the architecture of prevention; its practical effects would still require evaluation.

Primary enforcement decision: Italian Garante, 10 April 2025  

What is specification, what is extension, and what remains mixed?

My recent evidence-to-regulation study approached this layering question by separating three categories: Specification, where Article 14 largely turns an existing baseline into a more concrete rule; Extension, where it introduces a materially new child-specific relational safeguard; and Mixed, where both functions are present. This is an analytical classification, not language used by the Commission itself.

On that basis, the activation and disengagement controls in Article 14(2) are the clearest case of Specification because they closely translate the Commission’s 2025 guidance for integrated AI features into proposed operative obligations. The dependency-oriented design rule, the prior-interaction default, and the treatment of human-relationship displacement are better understood as Extensions of the identified baseline. Addictive or compulsive engagement and trust or emotional closeness have a mixed relationship with earlier instruments because relevant duties already exist, but Article 14 reorganises them around a specifically relational and child-focused context.

The same study also cautions against treating legal correspondence as proof of regulatory effectiveness. Its scientific corpus comprised 36 active sources and 111 mechanism-level extraction rows, alongside 20 normative and legal sources. Nine studies met a strict criterion for direct minor-specific empirical evidence. No long-term causal harm study was identified within that strict subset. The evidence was especially limited for conversational memory as an isolated causal mechanism, and much of the empirical literature remains weighted towards adolescents rather than younger children.

Underlying study: Bioethical Governance of Relational AI for Minors: Evidence-Regulation Alignment in Article 14 of the Proposed EU KIDS Act

The limits of layering

The proposal’s layered structure also creates boundaries that should remain visible. Article 14(2) applies its activation, prominence, encouragement and opt-out controls only when the qualifying AI is deployed as a functionality of a social network, video-sharing service or online game. The underlying relational mechanisms can also arise in standalone systems, but those specific paragraph 2 controls do not follow them there. Other Article 14 duties do apply more broadly to covered AI companions and general conversational chatbots.

Likewise, trust and emotional closeness are not independently regulated outcomes. They may be relevant to dependency, transparency, testing and monitoring, but the proposal does not create a general legal threshold for when a minor’s trust in a system becomes impermissible. Nor does the proposal itself establish that a particular safeguard will reduce long-term dependency or displacement of human relationships. Those are implementation and evidence questions that arise after the legal duty has been defined.

A relational-safety layer, not a replacement regime

Article 14 is therefore better read as a new relational-safety layer within an already dense EU digital framework. The DSA continues to supply the horizontal platform duty; the 2025 Guidelines remain relevant to the interpretation and practical application of that duty; the AI Act retains its own thresholds for prohibited manipulation, exploitation and transparency; and the GDPR continues to govern personal-data processing. The proposed KIDS Act adds rules that are more directly tied to the architecture of interaction between minors and conversational AI.

The resulting structure is cumulative rather than substitutive. Some provisions would harden existing Commission guidance into legislation. Others would extend the baseline by addressing emotional dependency, prior-interaction reuse, pre-market testing and post-market monitoring in a child-specific way. The overlap is real, but so are the differences in legal trigger, scope and function. If the proposal advances through the ordinary legislative procedure, those distinctions will matter when lawmakers, providers and regulators decide what Article 14 requires in practice.

*Prior related work and methods disclosure. This post develops a distinct doctrinal analysis drawing on the author’s DOI-registered, non-peer-reviewed preprint and related research synthesized in an unpublished monograph. A related, broader evidence-focused commentary by the author appeared in The European Scientist in September 2026. Editorial assistance with structure and wording involved an AI tool; the author is responsible for source verification, interpretation and the submitted text.

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Ana Cardoso [PhD candidate & Master’s in European Union Law at the School of Law of University of Minho. FCT research scholarship holder – 2025.06747.BD. DOI: https://doi.org/10.54499/2025.06747.BD.]

I.

The Critical Raw Materials Act (“CRMA”) aims to give a comprehensive response to the challenges of ensuring a secure and sustainable supply of the indispensable materials that are at the basis of the 2030 and 2050 objectives of the ecological and digital transitions; these are essential for the European Union’s (“EU”) economy and a wide set of necessary technologies for strategic sectors such as renewable energy, and the digital, aerospace and defence sectors.^[1]

 Within the recent push towards making its economy more independent and strategically relevant, the EU approved a number of projects with recognised strategic importance, the proposed Savannah Lithium Barroso Mine in the Trás-os-Montes region of northern Portugal being one of them.^[2] Additionally, the European Commission has launched a large deregulation effort in the form of the Omnibus Packages in order to encourage investment and facilitate the activity of private actors in sectors that push forth the ambitious objectives of a technologically advanced and climate-neutral economy.^[3] A push that has mostly relegated issues relating to climate, the environment, and the European Green Deal (“EGD”), into obscurity.^[4]

Nevertheless, there is hope to be found, as the Commission’s President Ursula von der Leyen dedicated part of her recent State of the European Union (“SOTEU 2026”) address to the issue of climate change. Recognising that “[s]cience is clear. Europe is warming at double the global rate. Of course, the transition is complex. And we will need to adjust and learn along the way. But there is no doubt: Europe can, must and will stay the course on its climate targets”. Still, focus heavily leaned towards resilience and preparedness aiming to “make Europe the champion in adaptation technologies – a huge emerging market”,^[5] and not so much on the EGD and its early ambitious initiatives.

 As Arthur Snell points out in his book “Elemental: the new geography of climate change and how we survive it”, the “critical-minerals story is a part of a bigger transition of global power”^[6] and, to put it very simply, “without critical raw materials, there will be no Green Deal”^[7], no ecological transition. As such, it is worth discussing how the EU is planning to keep its place as a relevant global actor, while at the same time not forgetting the costs that its decisions might have on the populations and environment of the places that will fuel this two-pronged transition.

II.

The CRMA – or Regulation (EU) 2024/1252 of 11 April 2024 – aims to be a comprehensive response to the challenges of sourcing critical raw materials by strengthening the European value chain and ensuring a diversification of the EU’s imports by reducing strategic dependencies, improving the EU’s capacity to monitor and mitigate risks and the circularity and sustainability of this critical market.

The crux of the issue, when it comes to critical raw materials, is in the fact that they are of high economic importance, especially in decarbonisation economies, but highly vulnerable to supply disruptions, due to the concentration of their supply in third countries. 

In the EU only – an economy highly reliant on these imports –, the demand is expected to increase seven-fold for rare earth metals and twenty-fold for lithium by 2050. Recent crises, like the invasion of Ukraine by Russia and the politico-economic instability caused by the second Trump administration, have underlined how impactful the EU’s strategic dependencies are for the internal market.^[8]

The risk here was that uncoordinated actions by Member States acting independently could not only be insufficient to effectively prevent supply disruptions and regulate what is a highly environmentally impactful industry, but they also could distort competition and cause the fragmentation of the internal market, through the imposition of diverging regulation, granting access to supply risk monitoring at different levels, offering diverging levels of support for national projects, or by creating obstacles to cross-border trade.^[9] Therefore, joint and timely action and a strengthening of the single market by focusing on the resilience and competitiveness of European industries was needed, at the risk of the EU’s ecological and digital objectives,^[10] hence the approval of the CRMA. 

When it comes to lithium deposits, they are not a rarity; they are relatively widespread around the world. Within the European territory there are some significant reserves, and in its path to independence the EU is trying to ensure that by 2030 at least 10% of its critical raw materials are produced in the continent, lithium is a part of this.^[11]

Although EU regulations aim to limit overdependence on third countries, reaching production targets has proved particularly challenging, mostly due to the fact that Europe is a continent of small and densely populated countries, it is unlikely that a mining project will be located far away enough from populations not to face strong social and political opposition.^[12] Examples of this phenomenon are: the project in Serbia – which at full potential would be Europe’s largest lithium mine – that has suffered repeated postponements and is at the basis of widespread protests, not just against the project but against the country’s government and its alleged corruption;^[13] and the Barroso lithium mine in northern Portugal, which, as covered below, after multiple challenges getting off the ground is likely to become an expensive producer, raising questions regarding its competitiveness.^[14]

The CRMA was accompanied by a communication that outlined how the EU intends to strengthen global engagement with reliable partners through mutually beneficial partnerships in a bid to develop and diversify investment, production, and trade, with a view to promoting these partners’ “own economic development in a sustainable manner while also creating secure, resilient, affordable and sufficiently diversified value chains for the EU”;^[15] meaning this has also become a focus of the European commercial policy and its commercial agreements. 

However, two relevant questions come to the forefront: will the EU’s industry pay the prices of internally produced – or produced in a third party-country under the auspices of a partnership agreement with the EU –, raw materials just because they originate in “friendly territory”? Or will it continue buying from perhaps less regulated third-party markets in a bid to make the final product, created in the EU, competitive on the world stage?^[16]

III.

The Savannah Lithium Barroso Mine will mean the biggest industrial investment in Portugal since Autoeuropa, three decades ago,^[17] and has been qualified as “strategic” by the European Commission, a status that effectively fast-tracks its development, by “providing faster permitting, improved access to financing, and reduced administrative burden”.^[18]

With exploration to start in 2028, this has been a somewhat controversial project; expected to be one of the biggest open-pit mines in Europe, it stands less than 2 kilometres away from seven villages, one of which stands a mere 200 metres away from its safety perimeter.^[19]

The independent monitoring network MiningWatch Portugal considers the Barroso Mine qualification as a way to “justify environmental degradation and harm to local communities, while overlooking lithium’s uncertain economics”, since a lithium value chain is not yet secure in Portugal or within the EU, as most projects are still in an embryonic stage.Despite requests by environmental organisations and local civil society groups to go back on their decision, the European Commission rejected them, arguing that under the CRMA “verifying full compliance with EU environmental law and that associated issues, from water scarcity to biodiversity and tailings safety, are Portugal’s responsibility”^[20] and not the Commission’s.

This conjecture led Associação Unidos em Defesa de Covas do Barroso and ClientEarth to file a case at the Court of Justice of the European Union (“CJEU”), alleging that the European Commission failed to take into account new evidence of the project’s environmental, social and safety risks. They ask the Court to not only annul the decision, but also clarify the Commission’s obligations under the CRMA.^[21]

A study done by Steven H. Emerman found that the project’s proposal did not “recognize that the embankment of waste rock that would surround the filtered tailings constitutes a dam” and that there was “no consideration of the consequences of dam failure, although the most-likely scenario will be a release of 8.5 million cubic meters of mine waste with a runout distance of 86 kilometres, affecting numerous communities along the Tâmega and Douro Rivers”. Meaning that in the likely scenario of dam failure, the populations living around the Tâmega River will suffer deep environmental consequences, with local water tables dropping, dealing with a high risk of leakage of toxic processing chemicals into the surrounding ecosystems, which will threaten human communities and regional biodiversity; with the worst-case scenario projecting that mine waste could end up in the Porto Metropolitan Area and then the Atlantic Ocean.^[22]

Hence, the mine’s potential impacts directly engage the protections of the Water Framework Directive – or Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy –, that originally enshrined a non-deterioration principle which meant that a project could not proceed if it posed a risk of worsening the status of rivers or groundwater.^[23] However, this Directive was reviewed under the EU’s deregulation push, which means that from 11 May 2026 this principle can be more flexibly applied in order to “facilitate important economic activities”.^[24]

In a TV report conducted by the Portuguese national channel, RTP, Savannah Resources’ CEO and its exploration manager argued that the environmental impacts of the mine would be fairly insignificant, and that all measures were being taken to guarantee that detritus from the mine would not leak and contaminate the ecosystem, as well as to prevent noise pollution and the perturbation of the local waterways.^[25] The environmental impact study, submitted in May 2020 and redesigned and resubmitted in 2023,^[26] found that the project could be one of low impact and that it minimised disturbances to the environment.^[27]

However, the previously cited study by Emerman found the project for the tailings storage and waste mound of the Barroso Mine as an example of “reckless creativity”, as it is mostly built upon a previously untested hypothesis which makes no consideration or action plan to the possibility of failure. The “Environmental Impact Study simply dismisses the possibility of failure by writing ‘the loss of human life is not expected, as the structural integrity and proper functioning of the waste facility are assured’ (…)”. ^[28] Further, using the word “assured” when referring to a situation highly dependent on unpredictable climatic and environmental conditions, and the use of an innovative engineering technique not built upon previous innovations, being therefore volatile, is reckless at best and highly dangerous at worst, making it sufficient for the rejection of the proposal. Despite this, the Portuguese Environmental Agency (“APA”) approved the project.^[29]

It is not the first time governments and economic actors seem to prioritise economic development and production above human and environmental safety. The Chernobyl Power Plant was publicly considered safe before the disaster, which resulted from a combination of a series of factors – including defective reactor and shutdown system design, general disregard for safety and operating procedures, lack of administrative controls and independent regulatory oversight, excessive secrecy, etc. –, which led to the worst nuclear reactor accident in history.^[30] In Aberfan, Wales the residents’ complaints about the mine’s waste mound were largely ignored, minimised, or dismissed by the National Coal Board and local authorities, resulting in the death of 144 people, including 116 children.^[31]

It becomes difficult not to draw some comparisons between these disasters and the possible consequences of Savannah’s project to transform an inactive feldspar and quartz mining concession into four open-pit lithium mines, whose tailings storage is “assured” not to fail. A project that affects a large portion of the only recognised Globally Important Agricultural Heritage Systems Site (“GIAHS”) in Portugal.^[32] In her SOTEU2026 speech, von der Leyen recognised “the risks of water scarcity for our farmers (…) For our industry – and for our food security. Crops need water to grow, while livestock need it to survive. Entire harvests depend on it”.^[33] The ecological and digital transitions should not rely on shortcuts, which could compromise certain areas and, in a different – but perfectly possible – world, could be detrimental to our future food security. Instead, they should be based on the respect for the EU’s fundamental legal principles, science and justice.^[34]

IV.

The Barroso region being a GIAHS means that the local communities live in an intricate relationship with the territory of this agro-ecosystem, which is characterised by “rich biodiversity, invaluable cultures and landscapes, sustainably managed by small-scale (pastoral) farmers”, and therefore the quality of the land, soil and water are of vital importance.^[35]

The focus has been put on how economically and strategically beneficial this project will be to the region, the country, and the EU. Still, the social impacts of the ecological and digital transitions should not be ignored. A study by the Centre for Social Studies of the University of Coimbra found that the communities local to these large industrial and mining projects often report being (i) slowly dispossessed and marginalised; (ii) having their lives and livelihood considered disposable; (iii) being subjected to daily psychological and emotional damage; (iv) having proposed alternatives to development systematically disavowed; and (v) being disqualified as political subjects.^[36]

Reporting reasons in line with these findings – which are strongly disputed by Savannah –, a group of around thirty people local to the Barroso Mine blocked machinery and workers from entering private and communal land to do prospective work with a view to studying the possibility of future enlargement of the mine; this work is possible due to an administrative easement given by the Portuguese Ministry of Environment which had previously been successfully suspended with an interim injunction filed by the Governing Board of the Communal Lands of the Parish of Covas do Barroso.^[37]

Nevertheless, the study argues that this ends up creating “green sacrifice zones” where people and spaces are seen as “dispensable or ‘surplus’”, in the name of manufactured urgency which is deployed to justify fast‐tracking extractive projects which render traditional evaluation and conservation practices invisible and/or too flexible to reach the proposed objectives of ecological preservation.^[38]

The demographic desertification of Trás-os-Montes, specifically, can be traced back to a lack of investment, taking away services, overlooking the need for infrastructure, and not giving enough support to the local agricultural sector.^[39]Most large-scale projects in the Trás-os-Montes region fail, leaving the region empty once again, and often stripped of its natural resources. Such is the example of the Complexo Agroindustrial do Cachão in Mirandela which left a deserted village, thousands of unemployed, and an “industrial cemetery”,^[40] or the Jales Mine the closing of which caused population and economic decline of a large region of the Vila Real district and later required an intervention of around 5.7 million euros for environmental recovery.^[41]

Additionally, there are undeniable environmental concerns when it comes to the Barroso mining project. APA declared that the environmental impact study, after its 2023 review, complies with stringent environmental requirements. The approval of the project is subject to a broad set of measures to be complied with by Savannah, with a focus on protecting the Covas River – a tributary of the Tâmega River –, and the preservation of local fauna and flora. Still, the concerns related to the possible failing of the filtered tailings storage brought forth by Emerman’s study do not seem to be fully accounted for.^[42]

As seen above, the Commission’s understanding is that the responsibility to fully evaluate the ecological impacts of a project like this belongs to Member States, despite its intersection with EU law. Therefore, it will be interesting to see what developments result from the CJEU’s response to the case brought by Associação Unidos em Defesa de Covas do Barroso and ClientEarth.

Projects like the Barroso lithium mine are important for the ecological and digital transitions to occur without leaving the EU in the fragile position of dependence on unreliable partners. As von der Leyen said during SOTEU2026: “This is not about mitigation or adaptation. We need both. And they need to strengthen each other. This is the only way to reach climate resilience”. [43] This transition does not occur in a vacuum, and there will be populations affected whose needs have to be recognised and accounted for. Our “future prosperity and security will greatly depend on how we manage the tipping points of our time”,^[44] and therefore the EU’s resilience and competitiveness should not come at the cost of compromising on its core values.

^[1] European Commission, “Critical Raw Materials Act”, accessed August 26, 2026, https://single-market-economy.ec.europa.eu/sectors/raw-materials/areas-specific-interest/critical-raw-materials/critical-raw-materials-act_en.

^[2] Client Earth, “EU Commission doubles down on risky Barroso mine project – NGOs warn of new ‘sacrifice zone’”, Press Release, November 26, 2025, accessed August 26, 2026, https://www.clientearth.org/latest/press-office/press-releases/eu-commission-doubles-down-on-risky-barroso-mine-project-ngos-warn-of-new-sacrifice-zone/.

^[3] European Commission, “Simplification”, accessed August 26, 2026, https://commission.europa.eu/law/law-making-process/better-regulation/simplification-implementation-and-enforcement/simplification_en.

^[4] Christian Calliess, “The future of the European Green Deal”, Verfassungsblog, September 12, 2024, accessed December 10, 2025, https://verfassungsblog.de/the-future-of-the-european-green-deal/.

^[5] European Commission, “2026 State of the Union address by President von der Leyen”, Speech, September 16, 2026, accessed September 21, 2026, https://ec.europa.eu/commission/presscorner/detail/ov/SPEECH_26_1868.

^[6] Arthur Snell, Elemental: the new geography of climate change and how we survive it (London, Wildfire, 2026), 92.

^[7] Snell, Elemental, 84.

^[8] Regulation (EU) 2024/1252 of the European Parliament and of the Council of 11 April 2024 establishing a framework for ensuring a secure and sustainable supply of critical raw materials and amending Regulations (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1724 and (EU) 2019/1020, recitals 1 and 2. European Commission, “Critical Raw Materials Act”, accessed August 26, 2026, https://single-market-economy.ec.europa.eu/sectors/raw-materials/areas-specific-interest/critical-raw-materials/critical-raw-materials-act_en.

^[9] Regulation (EU) 2024/1252 of the European Parliament and of the Council of 11 April 2024 establishing a framework for ensuring a secure and sustainable supply of critical raw materials and amending Regulations (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1724 and (EU) 2019/1020, recital 3.

^[10] European Commission, “Critical Raw Materials Act”, accessed August 26, 2026,  https://single-market-economy.ec.europa.eu/sectors/raw-materials/areas-specific-interest/critical-raw-materials/critical-raw-materials-act_en.

^[11] European Commission, “Critical”.

^[12] Snell, Elemental, 73.

^[13] Rutger Sluijter, “The EU’s lithium dilemma in Serbia”, The Hague Research Institute, November 2025, accessed September 04, 2026, https://hagueresearch.org/the-eus-lithium-dilemma-in-serbia/.

^[14] Snell, Elemental, 73.

^[15] European Commission, “Critical Raw Materials Act”, accessed August 26, 2026, https://single-market-economy.ec.europa.eu/sectors/raw-materials/areas-specific-interest/critical-raw-materials/critical-raw-materials-act_en.

^[16] Snell, Elemental, 73.

^[17] Autoeuropa, “30 anos de uma história de sucesso em Portugal”, August 26, 2026, https://www.volkswagenautoeuropa.pt/volkswagen-autoeuropa-celebra-30-anos/.

^[18] Earth.Org, “Environmental groups sue EU over controversial lithium mine in Portugal”. February 09, 2026, accessed August 26, 2026, https://earth.org/environmental-groups-sue-eu-over-controversial-lithium-mine-in-portugal/.

^[19] Sandra Vindeirinho, “A febre do lítio”, Adília Godinho (coord.) Linha da Frente, July 26, 2026, 02:38-12:00, August 26, 2026, https://www.rtp.pt/play/p16136/e943020/linha-da-frente.

^[20] Earth.Org, “Environmental”.

^[21] Earth.Org, “Environmental”.

^[22] Steven H. Emerman, “Evaluation of the tailings storage facility for the proposed Savannah lithium Barroso mine, northern Portugal”, June 29, 2021, 1 and 4, August 26, 2026, https://unece.org/sites/default/files/2021-10/frCommC186_15.10.2021_annex1.pdf.

^[23] Hands Off Nature, “Case study | Covas do Barroso lithium mine”, March 03, 2026, accessed August 26, 2026, https://handsoffnature.eu/resource/case-study-covas-do-barroso-lithium-mine/.

^[24] European Commission, “Water Framework Directive”, June 2026, accessed September 15, 2026, https://environment.ec.europa.eu/topics/water/water-framework-directive_en.

^[25] Vindeirinho, “A febre”, 25:16-27:23.

^[26] Savannah Lithium Lda., “Environmental Impact Assessment (EIA)”, accessed September 04, 2026,https://savannahresources.com/project/environmental-impact-assessment/.

^[27] Dinheiro Vivo/Lusa, “Savannah entregou Estudo de Impacto Ambiental para mina de lítio no Barroso”, Diário de Notícias, July 01, 2020, accessed September 04, 2026, https://dinheirovivo.dn.pt/savannah-entregou-estudo-de-impacto-ambiental-para-mina-de-litio-no-barroso-12694801.html.

^[28] Emerman, “Evaluation”, 34-36.

^[29] Savannah, “Environmental”.

^[30] Edwin Lyman, “Why is the US so anxious to unlearn the lessons of the Chernobyl disaster?”, The Equation, April 23, 2026, accessed September 15, 2026, https://blog.ucs.org/edwin-lyman/why-is-the-us-so-anxious-to-unlearn-the-lessons-of-the-chernobyl-disaster/. International Atomic Energy Agency, “Chernobyl accident – frequently asked questions”, accessed September 15, 2026, https://www.iaea.org/topics/chornobyl/faqs.

^[31] Iain McLean, “Lessons from the Aberfan disaster and its aftermath”, British Academy Review, 12 (January 2009): 49-52, https://www.thebritishacademy.ac.uk/publishing/review/12/lessons-aberfan-disaster-and-its-aftermath/. Huw Thomas and Tony Brown, “We survived the Aberfan disaster as schoolchildren, but were told to never talk about it again”, BBC, September 01, 2026, accessed September 15, 2026, https://www.bbc.com/news/articles/cx2zn9kdvxmo.

^[32] EEB – European Environmental Bureau, “Lithium mining in Barroso, northern Portugal – critical factsheets on mining projects”, EU Raw Materials Coalition, March 04, 2025, accessed September 15, 2026, https://eurmc.org/publication/lithium-mining-in-barroso-northern-portugal-critical-factsheets-on-mining-projects/.

^[33] European Commission, “2026 State of the Union”.

^[34] Earth.Org, “Environmental”.

^[35] EEB, “Lithium mining in Barroso”.

^[36] Marcus Erridge et al., “Social impacts of the Green Transition: prospective environmental (in)justice in Europe’s peripheries”, Politics and Governance, 14 (2026): 2, 5 and 8-11.

^[37] Lusa, “Lusa – Business News – Portugal: Police identify 27 who blocked work at future Boticas lithium mine”, AMAN, October 10, 2026, accessed October 13, 2026, https://www.aman-alliance.org/Home/ContentDetail/107555. Lusa, “Lusa – Business News – Portugal: Lithium mine opponents block works, access”, AMAN, October 10, 2026, accessed October 13, 2026, https://www.aman-alliance.org/Home/ContentDetail/107541.

^[38] Erridge et al., “Social impacts”, 2, 5 and 8-11.

^[39] Observatório Nacional da Desertificação, “População residente”, accessed September 23, 2026, https://desertificacao.pt/index.php/populacao-residente. Presidência do Conselho de Ministros, “Resolução do Conselho de Ministros n.º 124/2003, de 28 de agosto”, Diário da República, no. 198/2003, series I, August 28, 2003, accessed September 23, 2026, https://diariodarepublica.pt/dr/detalhe/resolucao-conselho-ministros/124-2003-633275.

^[40] Carlos Espírito Santo, “Cachão, uma aldeia abandonada!”, Diário de Trás-os-Montes, May 01, 2021, accessed August 26, 2026, https://www.diariodetrasosmontes.com/reportagem/cachao-uma-aldeia-abandonada.

^[41] Empresa de Desenvolvimento Mineiro S.A., “Recuperação ambiental da área mineira de Jales”, accessed August 26, 2026, https://edm.pt/projetos/recuperacao-ambiental-da-escombreira-da-area-mineira-de-jales/.

^[42] Agência Portuguesa do Ambiente, “AIA da ampliação da mina do Barroso – APA emite decisão ambiental favorável”, May 31, 2023, accessed September 23, 2026, https://apambiente.pt/sites/default/files/_A_APA/Comunicacao/Media/NotasOCS2023/NotaOCS_42-2023_AIA_MinaBarroso.pdf.

^[43] European Commission, “2026 State of the Union”.

^[44] European Commission, “2026 State of the Union”.

Picture credit: by Valerie Sirodova on pexels.com.

Cătălin Gabriel Stănescu, Reader in Law at Newcastle University and member of the European Commission’s Financial Services Users Group.

Photo credit: BNP Paribas HQ, by Boubloub, via Wikimedia Commons

A pending reference from the Greek Council of State brings an old question back before the Court of Justice: when credit is transferred to a purchaser and its administration and recovery are entrusted to a separate company, how should EU financial law classify the activities of that company? In Trapeza tis Ellados II, C-210/26, the Court is asked whether an undertaking engaged exclusively in credit servicing, without assuming credit risk, qualifies as a financial institution under the Regulation (EU) No 575/2013 on prudential requirements for credit institutions (Capital Requirements Regulation, CRR).

In a 2021 article,  I asked whether informal debt collection qualified as a financial service under EU law and what that qualification would mean from a legal perspective (pp 535-538). The answer was less straightforward than the question suggested. Treating collection as a financial service might activate additional protection for those subjected to it, but it might also make that protection depend on the origin of the debt. The difficulty itself was older: my 2015 analysis of MKG-Kraftfahrzeuge-Factoring had already shown how factoring, debt purchasing and collection could overlap without becoming identical.

Two recent CJEU judgments make the pending reference particularly interesting. In Kosmiro, the Court describes debt collection, for VAT purposes, as financial transactions designed to obtain payment (para 50). In IFIS NPL INVESTING, it excludes the purchase or management of non-performing loans from the economic activities covered by a particular definition of financial institution (para 37). The reference in Trapeza II concerns a servicer whose activities include administering and collecting debts, negotiating with borrowers and restructuring repayment obligations. The question is not simply whether these judgments can be reconciled, but how far a classification reached under one EU regulatory regime can be carried over into another. I argue that regulatory differentiation does not require conceptual separation. Lending, assignment, servicing and collection may attract different legal classifications while remaining connected stages in the life of the same credit relationship.

1.     The question in Trapeza II

The reference in Trapeza II was lodged by the Greek Council of State on 13 March 2026 and is currently pending. It arises from sanctions imposed by the Bank of Greece on the former managing director of a credit-servicing company (summary of the request, paras 6-8). The company was authorised and supervised by the Bank but operated exclusively as a servicer. Its activities included legal and accounting monitoring, recovery, negotiations with debtors, settlements and debt restructuring (paras 14-15). It assumed no credit risk (para 29).

The question is whether such a company is a “financial institution” under Article 4(1)(26) of CRR. The definition applicable at the material time covered an undertaking, other than an institution or pure industrial holding company, whose principal activity was acquiring holdings or pursuing one or more activities listed in points 2-12 and 15 of Annex I to Directive 2013/36/EU on access to the activity of credit institutions and the prudential supervision of credit institutions (Capital Requirements Directive, CRD). The dispute turns on two possible Annex I classifications: point 2, ‘lending’, which expressly includes factoring with or without recourse, and point 11, ‘portfolio management and advice’.

The Bank of Greece characterises the work as administrative factoring and, where securitised loans are concerned, portfolio management (summary of the request, para 10). The referring court provisionally rejects both propositions. That conclusion forms part of a broader line of reasoning. Drawing on Lineas – Concessões de Transportes and Others, joined Cases C-207/22, C-267/22 and C-290/22, judgment of 26 October 2023, the referring court starts from the proposition that an undertaking which does not carry out activities in the financial sector cannot qualify as a financial institution (para 23). It then reads the Annex I activities as, in principle, activities linked to the banking or financial sector. It invokes Directive (EU) 2021/2167 on credit servicers and credit purchasers as confirmation, in its view, that credit servicers are not financial institutions within the meaning of the CRR and do not simultaneously carry out activities in the financial sector (para 27). It ultimately concludes that companies performing only the specified servicing activities, without assuming credit risk, ‘do not carry out activities in the banking or financial services sectors’ (para 29). The classification is of immediate importance because it determines whether the sanctions applicable to financial institutions could be used against the applicant. The reference nevertheless raises a broader issue: how EU financial law classifies an undertaking that performs functions arising from a credit relationship while neither originating the credit nor assuming the associated credit risk.

There is also a temporal limit. Regulation (EU) 2024/1623 (CRR III) amended that definition with effect from 1 January 2025. The current Article 4(1)(26) also expressly includes an “ancillary services undertaking” as an alternative basis for classification as a financial institution. Article 4(1)(18), as amended, defines such an undertaking by reference to a principal activity consisting, inter alia, of a direct extension of banking or other activities ancillary to banking. That express route to financial-institution status was absent from the version of Article 4(1)(26) applicable to the dispute. The judgment will therefore interpret a superseded definition. Its reasoning on factoring, portfolio management and credit servicing may nevertheless remain relevant under current law, even though the amended definition now provides an additional route to financial-institution status.

2.     Factoring as debt collection

Kosmiro, C-232/24, judgment of 23 October 2025, concerned two factoring models. Under trade factoring, the factor purchased invoices and assumed the debtors’ default risk. Under invoice factoring, the debts remained with the client, which retained the default risk while obtaining finance secured by those debts. In both arrangements, the factor administered and collected the debts (paras 11-13). The VAT question was whether the relevant fees constituted consideration for exempt credit or taxable debt collection under Article 135(1)(b) and (d) of Directive 2006/112/EC on the common system of value added tax (VAT Directive).

The Court began from the debt-collection exception to the exemption for transactions concerning debts. Exemptions are interpreted strictly, while the exception, which restores taxation, is interpreted broadly (paras 46, 49). Debt collection refers to “financial transactions designed to obtain payment of a pecuniary debt” (para 50). That concept encompasses both factoring models (paras 51-53).

That conclusion builds on an established line of VAT-related activities case law. In MKG-Kraftfahrzeuge-Factoring, C-305/01, judgment of 26 June 2003, the Court held that factoring is merely a variant of the more general concept of debt collection, whatever the manner in which it is carried out (paras 76-77). In AXA UK, C-175/09, judgment of 28 October 2010, it added that debt collection need not concern an overdue debt or involve coercion (paras 31-35). The resulting VAT concept is therefore not confined to coercive recovery of debts already in default.

In Kosmiro, the Court held that, in principle, factoring constitutes a single economic transaction whose main purpose is to transfer responsibility for recovery and collection from the client to the factor and splitting that transaction would be artificial (para 60). In trade factoring, the funds paid for the purchased debts were not a loan to the client and there was consequently no credit relationship between factor and client (para 61). In invoice factoring, by contrast, financing was provided, but not independently of the debt-collection service, of which it was the corollary (paras 62-63). The Court distinguished arrangements whose essential purpose was independently the provision of financing (paras 64-66). Importantly, it rejected the argument that all financing arrangements must receive the same VAT treatment: the legislative distinction between debt collection and the granting of credit permits “financing arrangements subject to VAT and financing arrangements exempt from VAT” to coexist (para 67). The relevant invoice-factoring fees therefore constituted consideration for a single and indivisible debt-collection service subject to VAT (paras 68-69). 

There are firm limits. The Court classifies the transactions for VAT purposes but does not define the institutional perimeter of prudential supervision. It establishes that factoring falls within debt collection, not that every collector performs factoring. Nor does the debtor purchase the service examined in Kosmiro: the factor supplies it to the creditor-client. Finally, purchasing debts need not supply a remunerated service at all. In GFKL Financial Services, C-93/10, judgment of 27 October 2011, a price reflecting the actual economic value of defaulted claims was not consideration for a service to the seller (paras 22-26).

Kosmiro consequently provides no trans-substantive definition of financial services. Its narrower significance is nevertheless important. EU VAT law describes debt collection as consisting of financial transactions designed to obtain payment of a pecuniary debt, and Kosmiro demonstrates that financing and collection can form part of the same economic arrangement without becoming identical legal services. What it undermines is therefore any assumption that the functions of financing and collection must always be legally or economically separate.

3.     The classification puzzle

The difficulty is that the Court has recently used a different regulatory definition to reach a conclusion that appears to leave little room for treating the purchase or management of non-performing loans as a financial activity. In IFIS NPL INVESTING, C-65/25, judgment of 11 June 2026, the Court stated that the economic activities covered by Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (Fourth Anti-Money Laundering Directive, AMLD) do not include the purchase or management of non-performing loans (para 37). The conclusion is relevant for Trapeza II because the Greek undertaking did not purchase the claims it serviced, but its activities included their administration, collection, negotiation and restructuring. The question is whether the exclusion of NPL “management” in IFIS also encompasses those distinct servicing functions.

IFIS arose from Italian legislation governing bulk assignments of non-performing loans during the period before the expiry of the deadline for transposing Directive 2021/2167. The referring court asked, among other things, whether entities carrying out such assignments had to be subject to anti-money-laundering supervision.

In this instance, the definition before the Court was Article 3(2)(a) of AMLD, not Article 4(1)(26) CRR. It covered an undertaking other than a credit institution which carried out one or more activities listed in points 2-12, 14 and 15 of CRD Annex I. That statutory route nevertheless matters for Trapeza II because it incorporates the two Annex I activities at issue there: point 2, which includes factoring, and point 11, portfolio management and advice. Yet the Court does not analyse either Annex I activity separately. Its unqualified exclusion of NPL purchase and management consequently raises the question whether either activity can bring an undertaking within the corresponding CRR definition.

That passage is difficult to confine to its facts. Unlike the historical CRR definition, the AMLD did not require an Annex I activity to constitute the undertaking’s principal activity. If the purchase or management of NPLs does not fall within the relevant Annex I activities at all, making that activity the undertaking’s principal business cannot by itself bring it within the CRR definition. IFIS therefore points strongly towards exclusion if the Greek servicer’s work is characterised simply as the management of NPLs.

IFIS bears directly on Trapeza II, but does not resolve it. The dispute in IFIS arose from bulk assignments of NPL portfolios, whereas the Greek undertaking in Trapeza II neither acquired the claims it serviced nor assumed their credit risk. Paragraph 37 of the IFIS judgment extends the Court’s conclusion beyond the purchase of NPLs to their “management”, but does not examine what that activity encompasses. In particular, the Court did not consider whether the administration, collection, negotiation and restructuring performed by a credit servicer could constitute factoring under point 2 of Annex I to the CRD, or whether the management of a portfolio of credit claims could fall within “portfolio management and advice” under point 11 of that Annex. Instead, the reasoning moves directly from the scope of the AMLD to the exclusion of NPL purchase and management. The temporal analysis in IFIS does not qualify that conclusion. Paragraphs 31–36 of the judgment explain why Directive 2021/2167 did not apply to the transfers at issue and could not be applied retroactively; paragraph 37 states a separate conclusion concerning the scope of the AMLD. That conclusion must therefore be confronted on its own terms.

The two definitions also perform different functions. The AMLD identifies obliged entities for the purposes of anti-money-laundering supervision, whereas the CRR definition operates within a system of prudential regulation and financial-sector supervision. In Lineas, the Court interpreted the historical CRR definition in that regulatory context. It concluded that an undertaking whose sole activity consisted in acquiring holdings in companies which did not carry out activities in the financial sector was not a “financial institution”. Its reasoning emphasised the distinction drawn by the CRR between holdings in financial-sector entities and holdings outside that sector, and the inconsistency that would result from subjecting the latter to rules designed for the former (paras 69-81).

Those different regulatory purposes matter, but they do not by themselves resolve Trapeza II. Both definitions incorporate points 2 and 11 of the same CRD Annex I. If those common terms produce different classifications in the AMLD and CRR contexts, the difference must be explained through the wording, structure and purpose of the respective regimes. Regulatory purpose alone cannot determine what counts as factoring or portfolio management.

Trapeza II thus offers the Court an opportunity to provide the analysis compressed into paragraph 37 of IFIS. It could explain whether servicing without credit risk can constitute factoring under point 2; what “portfolio management and advice” means in point 11 when the portfolio consists of credit claims; and whether the servicer’s combination of collection, negotiation and restructuring affects either classification. If the result remains exclusion, the reasoning should identify why those activities fall outside the particular definition rather than turn that exclusion into a general proposition that servicing and collection are external to finance.

Consumer law reveals the relevance of that distinction. In Gelvora, C-357/16, judgment of 20 July 2017, the Court held that the concept of commercial practices directly connected with the sale of a product extends beyond the conclusion of the contract to its performance, to include measures taken to obtain payment (paras 19-21). The claims at issue originated in consumer credit, and their recovery could fall within the Unfair Commercial Practices Directive even after assignment to a debt collection agency (paras 22-25). Excluding credit-repayment transactions following assignment could undermine consumer protection by encouraging traders to separate the recovery phase in order to escape the Directive (para 28). The Directive could also apply where unilateral collection measures were pursued in parallel with formal enforcement (paras 29-31).

Gelvora does not classify debt collection as a financial service. Paragraph 25 appears to distinguish the two activities: the collection agency does not provide consumer credit “as such”. Its significance lies instead in the continuity recognised for the particular purposes of consumer protection. Assignment changes the creditor and recovery changes the activity, but neither necessarily breaks the legal connection between collection and the credit from which the payment obligation arose.

INKO, C-127/15, judgment of 8 December 2016, provides a complementary, activity-specific example. Under Directive 2008/48/EC on credit agreements for consumers, a debt collection agency acting on behalf of a lender to conclude a rescheduling agreement for unpaid credit must be categorised as a “credit intermediary” within the meaning of Article 3(f) (paras 42-44). The classification follows not from debt collection alone but from the additional function performed by the agency within the existing credit relationship: concluding the rescheduling agreement on the creditor’s behalf. The Court further held that acting as a credit intermediary only in an ancillary capacity may remove particular pre-contractual information obligations without altering that classification (paras 47-53).

4.     Continuity without regulatory identity

The case law does not produce a single answer to whether collection is a “financial service”. And, perhaps, it should not. Lending creates credit; purchasing transfers a claim; servicing manages rights and obligations arising from it; collection seeks payment; and enforcement invokes legally compulsory procedures. Those functions may overlap, but they are not identical and may justify different authorisation, conduct, prudential and tax rules.

The difficulty begins when a conclusion designed for one of those purposes is detached from it. Under Directive 2021/2167, a credit purchaser does not require authorisation to operate because it acquires existing non-performing credit rather than creating new credit and raises negligible systemic risk (Recital 40). IFIS excludes the purchase or management of NPLs from the economic activities relevant to the AMLD, while Trapeza II asks whether particular servicing functions fall within the historical CRR definition. A particular acquisition of debts may not constitute a remunerated service for VAT purposes. None of those situations establishes, without another legal step, that collection has become external to the financial relationship from which the payment obligation arose.

Directive 2021/2167 embodies this distinction. A credit servicer manages and enforces rights and obligations related to a creditor’s rights under a non-performing credit agreement, or to the agreement itself, on behalf of a credit purchaser. Credit-servicing activities include collecting or recovering payments, specified renegotiation, complaints administration and informing borrowers of changes in interest rates or charges or of payments due (Article 3(8) and (9)(a)-(d)). Rather than simply designating servicers as credit institutions or financial institutions, the Directive subjects them to a bespoke authorisation and supervisory regime (Articles 4-14 and 21-23).

At the same time, the regulatory object remains connected to the underlying credit relationship. Article 10 of Directive 2021/2167 regulates the conduct of purchasers and servicers towards borrowers, requiring good faith, fairness and professionalism and prohibiting harassment, coercion and undue influence. It also requires specified information to be communicated after transfer and always before the first debt collection. The limited prudential concerns associated with credit purchasers do not, however, displace the conduct obligations applicable to them and their servicers. Yet Union and national consumer-protection rules continue to apply and borrowers retain the rights arising from the initial credit agreement. Regulatory identity changes; legal continuity remains.

This also separates different forms of risk. Whether an undertaking assumes the economic loss resulting from non-payment may be highly relevant to prudential classification. It says much less about the conduct risks created by controlling communications with borrowers, repayment negotiations and collection. A servicer’s absence of credit risk may therefore matter to one regulatory classification without establishing that its activities are unrelated to the underlying financial relationship. Undertakings might pose little or no systemic risk, but that does not mean no risk to consumer-debtors. Directive 2021/2167 responds to such conduct risks through authorisation and conduct obligations tailored to servicing rather than lending.

It should be emphasized that the Directive is selective evidence, not a complete solution. Its framework concerns non-performing credit agreements issued by credit institutions established in the Union and contains significant exclusions (Articles 1-2). It does not create a common regime for the collection of rent, utility debts or other non-credit claims. That limitation leaves intact a problem I identified in my earlier work: if protection against abusive collection depends on the regulatory identity of the debt or collector, comparable collection practices may attract different legal responses for reasons having little to do with the risks those practices create.

The answer is not to declare every collector a financial institution, but to resist allowing institutional definitions to determine questions they were not designed to answer. Prudential classification should follow prudential purposes. Consumer-facing collection should remain subject to effective conduct controls because of the activity and its connection to the underlying obligation. Where gaps remain outside the sectoral regime, they require direct regulation rather than conceptual disappearance.

Credit does not stop being finance at a single identifiable moment. Default, assignment and outsourcing redistribute its functions and risks. They may change the applicable service, institution and regulatory regime without erasing the relationship between the claim being collected and the transaction that created it. IFIS requires purpose-specific exclusions to be taken seriously. Kosmiro, Gelvora and INKO require equal caution before turning such an exclusion into a general separation between finance and collection. Trapeza II is an opportunity to articulate both propositions and to clarify a boundary that EU law has so far defined only imperfectly.

 Joanna Demopoulou*

Photo credit: Mstyslav Chernov, via Wikimedia Commons

* Joanna Demopoulou holds a PhD in International Affairs and is a former Executive in Residence at the Geneva Centre for Security Policy (GCSP). Her research examines the legal and institutional architecture of public authority and governance, focusing on how law structures, distributes, and constrains public authority across European and international institutions.

On live television in late September, Greece’s deputy foreign minister, Haris Theocharis, told a fellow panelist that his party represents “noikokyrides”, householders who manage their affairs responsibly, while opposition parties represent the “kakomoiris”, the unfortunate. He later called the phrase a mistake. The remark is domestic party rhetoric, not the language of any EU institution, and this post does not treat the Union as its author. It is a symptom of an institutional environment that makes it easy, more than a decade after Greece entered its first adjustment programme, to recode continuing hardship as a private failing. That environment is the subject here.

An asymmetry, not just two numbers

The familiar observation is that macroeconomic recovery and social recovery are different things, and that a country can score well on one while scoring badly on the other. That is true but not new, and by itself it is a complaint about incomplete data, not a constitutional argument. The sharper claim is about institutional force: what each kind of finding is allowed to do. Some of the Union’s indicators can close a file. Others can only describe what remains in it.

Under the Macroeconomic Imbalance Procedure, a Member State is placed into one of several formal categories, and movement between them triggers or lifts surveillance, and in the worst case, correction. A finding of “imbalances” carries institutional consequences; it is a status, not a description. A finding of “no imbalances” removes that status and the surveillance that comes with it. Continuing hardship, measured by Eurostat’s indicator of poverty and social exclusion or by the Commission’s own Social Convergence Framework, is real institutional knowledge, produced and published by the same Union. It has, as far as I have found, no comparable status that opens or closes. It accumulates as description.

One answer is that this is simply a difference of subject matter: debt and deficits are quantities a procedure can act on directly, while poverty has many causes and no single lever. That is a reason to design a different kind of instrument, not a reason for the Union to have no closing instrument at all. The Social Convergence Framework already collects comparable indicators and already names “overall challenges” for specific countries. What it does not produce, on the evidence available, is a formal status with an identifiable condition for exit. The asymmetry is better described as a feature of institutional design than as a fact of nature about the difference between fiscal and social policy; nothing here requires assuming that anyone chose it deliberately.

Closing the macroeconomic file

The 2026 European Semester Spring Package (COM(2026) 200), adopted on 3 June, found that Greece, the Netherlands and Sweden “are assessed as no longer experiencing imbalances”. For Greece this followed a finding of “imbalances” in the 2025 cycle. Alongside the Spring Package, a separate Post-Programme Surveillance assessment (C(2026) 4000), whose stated objective is to confirm that a country “maintains its capacity to service its debt”, concluded of each of Ireland, Greece, Cyprus and Portugal in turn that it “retains the capacity to service its debt”. Together these findings close the imbalance status that had attached to Greece and record that, on the Union’s own assessment, it retains the capacity to service its debt.

The same spring, Eurostat reported that 27.5% of people in Greece were at risk of poverty or social exclusion in 2025, the second-highest share in the Union after Bulgaria, against an EU average of 20.9%. The Commission’s Social Convergence Framework, published weeks earlier, named Greece among six Member States facing “overall challenges to upward social convergence”, alongside Bulgaria, Italy, Latvia, Lithuania and Romania. Both are Union findings, produced through the same European Semester as the imbalance procedure, by the same Commission, in the same year. Neither carries a formal status with an identifiable condition for exit. There is no announced moment at which a Member State is declared to have exited social hardship the way it exits an imbalance. No scoreboard entry reads “no longer experiencing social exclusion.”

A pattern with a history

The pattern predates this recovery. It was present at the start of the adjustment programmes, and admitted along the way. The European Parliament’s 2014 resolution on the employment and social aspects of the Troika found that Greece’s programmes rested on “a mistaken assumption regarding the economic multiplier effect, resulting in failure to act in time to protect the most vulnerable against poverty”, and it regretted that “proper impact assessments were not made of their distributional impact on different groups of society”. Parliament called on the Commission to take social indicators into account in any renegotiation of the programmes.

The Commission’s own ex-post evaluation, published nine years later in 2023, concluded that the Greek programmes “did not initially perform as expected, but that their results improved over time and their main objectives have been achieved”. The objectives referred to are fiscal and financial: the evaluation’s own executive summary names “fiscal consolidation to ensure debt sustainability” and Greece’s gradual return to sovereign markets as the programmes’ main objectives. The 2023 evaluation neither revisits the 2014 finding about households left unprotected against poverty nor contradicts it. That kind of finding is simply not what a programme evaluation is built to reopen. The two documents, nine years apart, describe the same programmes from within two different regimes of assessment, and only one of those regimes produces a verdict of success.

Why this is a constitutional question

It would be possible to read all of this as a policy complaint dressed in legal language: the Union should care more about poverty, full stop. The claim here is different. Article 9 TFEU and Article 3(3) TEU are not external moral commentary on economic governance; they are commitments inside the same legal order that produces the Semester, the imbalance procedure and the surveillance reports. This post does not argue that the Treaties require a social counterpart to the imbalance procedure, or that the absence of one is unlawful in itself. The question is why one part of that legal order can close a file while the other, under the same Treaties, can only describe.

What the constitutional texts actually commit to

The Treaties are not silent on this asymmetry, even if they do not resolve it. Article 9 TFEU requires the Union, in defining and implementing its policies, to take into account “a high level of employment, the guarantee of adequate social protection, the fight against social exclusion”. Article 3(3) TEU sets out objectives of the Union rather than a requirement of that kind: “a highly competitive social market economy, aiming at full employment and social progress”, and the combating of “social exclusion and discrimination”. Neither provision creates a directly enforceable right, and neither did the work in this recovery that the imbalance procedure did.

The Charter of Fundamental Rights binds Member States only when they implement Union law. Article 1 on human dignity and Article 34 on social security therefore cannot be read as a freestanding review of a minister’s remark, or of Greek welfare policy generally. But the Union’s institutions were not outside the Charter during the adjustment era. In Ledra Advertising, the Court of Justice held that the Charter is addressed to the Commission even when it acts within the framework of the European Stability Mechanism, and that the Commission, under Article 17(1) TEU and Article 13(3) and (4) of the ESM Treaty, must ensure that a memorandum of understanding is consistent with the fundamental rights the Charter guarantees. That reasoning concerned Cyprus, but the same provision of the ESM Treaty governed Greece’s third programme, financed through the ESM from 2015. The Commission negotiating that programme’s conditionality was, on the Court’s own logic, not acting in a Charter-free space. The constitutional commitments were therefore legally live while the programme took its social shape. What they did not generate, then or since, was a closing mechanism comparable to the one that, a decade later, closed the macroeconomic file. A Member State’s exit from the imbalance procedure is announced by name, in a document with legal consequences. I have found no act that records how the requirements listed in Article 9 TFEU, which the Union must take into account in defining and implementing its policies, were weighed in reaching that finding.

From institutional story to personal blame

None of this explains a minister’s choice of words; it describes the space in which that choice becomes intelligible. When the dominant institutional narrative is that a country has recovered, continuing difficulty is harder to read as an unfinished collective problem and easier to read as an individual one. If the country succeeded, the reasoning runs, whoever is still struggling did something wrong, or belongs to the group the recovery was never going to reach. “Noikokyris” and “kakomoiris” give that reasoning a name; they do not invent it. Pressed on air by an opposition MP, Tonia Antoniou, Theocharis said his party represents both the “noikokyrides” and people who “get by with difficulty”, which kept the division intact even as he tried to soften it.

“Recovered” is not a loose figure of speech picked up by commentators. It is the closest available paraphrase of what the Semester’s own category change says about Greece, a status built on indicators designed to answer exactly that question. Against that background, any remaining hardship needs a separate explanation, and “noikokyris/kakomoiris” supplies one.

This is a diagnosis about institutional design, not an accusation against any single actor. Those who speak of recovery are not wrong about what they measure: the debt ratio has fallen, and Greece’s return to market financing is real. The claim is narrower. An architecture that lets one kind of finding close a file and confines another to permanent description makes it easier for political language to treat the second as somebody’s personal failing. Nothing here shows that the architecture causes that language; it shows what it leaves open for that language to do.

Several Union reports on poverty already exist, so another one is not the remedy. The task, instead, is to ask, as an open constitutional question rather than a ready design, what it would take for the Union’s own commitments in Article 9 TFEU and Article 3(3) TEU to carry institutional weight of a kind comparable to the imbalance procedure’s, and what would have to be true before a Member State’s file could be said to reflect both. This post does not answer that question; it argues that the gap in weight, not merely in numbers, is where the answer has to start. Until that changes, the Union will keep producing two kinds of knowledge about the same country, and the difference between them lies less in what the Union knows than in what each kind is institutionally permitted to do: one can end a crisis, and the other can only keep describing it.

Mohammed Abbas Mohsin, PhD in Public Law, Diplomatic advisor 

Photo credit: San Jose Public Library, via Wikimedia Commons

  Abstract

    This blog post presents a comparative legal analysis of the regulatory and judicial frameworks governing the balance between the fundamental right to freedom of expression and the state’s pressing interest in protecting children in the digital age. By examining recent landmark decisions handed down by the Supreme Court of the United States, the Court of Justice of the European Union, the French Council of State, the Italian Regional Administrative Court, and the Supreme Court of England and Wales, this paper analyses how the various judicial authorities in those countries reconcile the requirements for age verification on digital platforms with constitutional safeguards and human rights. This post explores the shift in levels of judicial scrutiny, the extent to which procedural requirements under internal market rules (such as the country-of-origin principle) apply, the unique technical and operational challenges faced by collaborative open-source platforms, and the emerging international consensus that, whilst child protection is of the utmost importance, the regulatory measures employed must remain carefully tailored and procedurally compliant to avoid disproportionate restrictions on adults’ freedom of expression and privacy.

    1. Introduction

    The rapid shift from physical to digital media has led to a radical and evident change in minors’ exposure to sexually explicit content, rendering the traditional restrictions imposed on high-street shops ineffective and unable to keep pace with this problem. Governments around the world have responded by enacting comprehensive age-verification laws targeting online commercial platforms. However, these laws inevitably conflict with the fundamental rights of adult users – who have a constitutional right to access age-restricted content intended for adults – and with digital platforms that rely on the free flow of information.

The key legal conflict lies in determining where the state’s regulatory authority to protect the innocence of minors ends, and where the unlawful restriction of adults’ rights begins.

  This comparative legal analysis examines how various democratic legal systems have addressed this tension. Specifically, it reviews the standard of scrutiny applied to digital age verification laws, the impact of federalism and cross-border economic frameworks, and the unique challenges faced by non-profit cooperative structures in this regard.

2. The US Constitutional Model: Scrutiny and Incidental Burdens

   The American approach is characterised by the Supreme Court’s strict interpretations of the First Amendment to the Constitution.

  In the case of ‘Freedom of Expression Coalition v. Paxton 2005 ’, the US Supreme Court considered an apparent constitutional challenge to Texas House Bill 1181 (H.B. 1181), which requires commercial entities that distribute sexually explicit content harmful to minors to implement reasonable age verification measures .

   The central constitutional debate in the Paxton case centred on the appropriate level of judicial scrutiny to be applied by the Supreme Court.

   Traditionally, regulations concerning content protected by freedom of expression are subject to strict scrutiny, the most stringent standard in constitutional law, which requires the government to demonstrate that the law is the least restrictive means of achieving a compelling .

   However, the majority opinion, delivered by Justice Thomas, held that Bill No. 1181 was subject only to intermediate scrutiny. in its ruling, the Supreme Court held that the state possesses the traditional authority to prevent minors from accessing speech which it deems obscene from its own perspective; consequently, adults are not entitled, under the First Amendment to the US Constitution, to access such speech without first providing proof of their age.

    Based on the principle established by the Supreme Court in United States v O’Brien, 1968 the majority described the age verification requirement as an ‘incidental burden’ on adults’ right to protected freedom of expression, rather than an outright prohibition

   Under the intermediate standard of judicial review (the intermediate constitutional scrutiny standard), the law was upheld because it advances a substantial government interest unrelated to the suppression of freedom of expression, and does not impose a greater burden on freedom of expression than is necessary.

    The Supreme Court noted that the requirement for age verification is a traditional, widespread and legitimate means of enforcing age restrictions, similar to the purchase of alcohol or firearms

  In a sharp dissenting opinion, Justice Elena Kagan—joined by Justices Sonia Sotomayor and Ketanji Brown Jackson—criticised this analysis, describing it as “entirely circular”. Rather than asking the correct constitutional question —“Does this law impose an unjustified burden on protected adult rights?”—

   the majority defined the constitutional right of adults from the outset as “a right subject to age verification”, and then logically concluded that the law did not violate that right; this is a clear circular logical fallacy that assumes the validity of the conclusion to be proven in order to evade the application of the strict scrutiny standard.

       The dissenting opinion (written by Justice Kagan) held that Texas House Bill 1181 imposes unjustified restrictions on the constitutional rights of adults by virtue of its communicative content—as a direct, content-based regulation—and must therefore be subject to strict scrutiny, in accordance with decades of case law, including the cases of Sable,  Playboy,  Reno and Ashcroft II.

  Justice Kagan emphasised that requiring adults to provide sensitive personal information in order to access controversial content imposes an unacceptable ‘chilling effect’, particularly on the internet, where users fear for their reputation, The dissenting opinion was written and drafted by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Kay Tang Brown Jackson. It held that the law must be subject to strict scrutiny, with Justice Kagan and her colleagues arguing that the Texas law (H.B. 1181) for age verification constitutes a direct content-based restriction on adults’ constitutionally protected freedom of expression, thereby requiring it to be subject to the highest standard of judicial scrutiny in order to protect fundamental rights. Consequently, the dissenting opinion affirmed that if there is a less restrictive alternative (such as user-side content filtering) that could protect children to the same extent, the state must adopt it rather than unnecessarily burdening adult expression .

3. The Organisational Structure of the European Union: Market Integration and the Country of Origin Principle

   Unlike the dualistic framework based on the principle of separation between freedom of expression and the state’s freedom in the US Supreme Court’s case law, the European Union’s approach is closely intertwined with the rules of the internal market.

  Under Directive 2000/31/EC (the E-Commerce Directive), the ‘country of origin’ principle ensures that information society services are regulated exclusively by the Member State in which the provider is established, thereby preventing the targeted Member States from imposing additional regulatory burdens.

    In its landmark judgment delivered by the Grand Chamber on 16 June 2026, in the case of WebGroup Czech Republic and Others (joined cases C-188/24 and C-190/24), the Court of Justice of the European Union clarified the limits of Member States’ authority to regulate the protection of minors in the digital sphere.

    The Court of Justice of the European Union held that Articles 2(h) and 3 of Directive 2000/31/EC preclude any Member State from imposing a general and abstract obligation under criminal law to prevent minors from accessing pornographic content from service providers established in other Member States.

     These sweeping criminal obligations undermine the country-of-origin principle by going beyond the procedural and substantive safeguards set out in the Directive.

   These sweeping criminal obligations undermine the country-of-origin principle by going beyond the procedural and substantive safeguards set out in the Directive.

  However, the Court of Justice of the European Union has ruled that, provided there is strict compliance with Article 3(4) of Directive 2000/31/EC, Member States are not precluded from adopting measures requiring specific service providers to establish age-verification systems, provided that those providers have not implemented ,appropriate preventive measures under Article 28b of the Audiovisual Media Services Directive .

     These individual exceptions must be interpreted in the light of Article 1 (human dignity) and Article 24 (rights of the child) of the Charter of Fundamental Rights of the European Union .

   In doing so, the Court of Justice of the European Union established a regulatory framework: general, unilateral restrictions on targeted countries are prohibited, but age verification orders directed at specific platforms may be issued provided that the requirements for procedural consultation and notification are met.

4. Transposition of laws and litigation between Member States: France and Italy

   The practical contradiction between protection policies in the target countries and the European Union’s Internal Market legislation is clearly illustrated by recent administrative proceedings in Italy and France.

 4.1 The French Council of State (Conseil d’État)

   France has transposed the requirements for the protection of minors through amendments to Article 10 of Law No. 2004-575 on strengthening confidence in the digital economy, empowering the French national regulatory authority (Arcom) to impose age verification standards.

    In the case of Webgroup Czech Republic and NKL Associates (10 June 2025), the Council of State considered a priority constitutional question (QPC) challenging Article 10-2 of this Act.

   The applicants argued that the Act violates the principle of the personal nature of penalties because it penalises publishers for failures in the age verification system caused by third-party ‘trusted identity’ providers who operate the ‘double anonymisation’ protocol .

   For its part, the Council of State refused to refer the request for approval of age verification to the Constitutional Council, considering that the obligation to ensure age verification in accordance with the law remains a personal responsibility incumbent upon platform operators, and that the exclusion of third-party service providers from the direct scope of Arcom’s enforcement does not raise a fundamental constitutional issue.

    Shortly afterwards, in the case of Hami Media Ltd (xHamster) v Minister of Culture (15 July 2025), the Council of State quashed a court order that had suspended the ministerial decree

subjecting the xHamster website (hosted in Cyprus) to French age verification legislation.

   The Cypriot provider claimed that French law would cause severe economic losses as a result of user migration and a breach of the privacy rights of adult users.

    Under Article L. 521-1 of the Code of Administrative Justice, the suspension of a licence requires proof of an ‘emergency situation’ that outweighs the public interest. The Council of State held that the commercial and privacy-related objections did not satisfy this condition when weighed against the overriding public interest in protecting children from explicit pornographic material .

  4.2 The Italian Regional Administrative Court (TAR Lazio)

  In Italy, the Caivano Decree (Article 13-bis of Legislative Decree 123/2023) a general obligation for age verification on pornography platforms operating in Italy, delegating the technical rules to the Italian Communications Authority (AGCOM) .

    The Italian Communications Authority (AGCOM) issued Circular No. 96/25/CONS and subsequent lists of platforms subject to the obligation, thereby extending the age verification requirements to include EU service providers based abroad, including Aylo Freesites Ltd (registered in Cyprus) .

   As a result of this  Aylo challenged the proceedings on several grounds, including breaches of the data minimisation principle set out in the General Data Protection Regulation (GDPR) and the country of origin rule.

   The Lazio Administrative Court of Appeal dismissed the complaints relating to the General Data Protection Regulation and the substantive complaints, concluding that the Communications and Information Technology Authority’s ‘technologically neutral’ standards, adopted following consultation with the Data Protection Authority, respect the principle of data minimisation by prohibiting the retention of identity documents.

   However, the court annulled the automatic extension of the requirements to foreign platforms established in the European Union, as the Italian Communications Authority (AGCOM) had completely disregarded the mandatory procedural requirements laid down in Article 3(4)(b) of Directive 2000/31/EC .

   Under this rule, before any Member State can restrict an information society service from another Member State, it must first formally request the home Member State (Cyprus) to take precautionary measures and notify the European Commission. 

  As the Italian Communications Authority (AGCOM) had not followed this procedure, the Italian court partially annulled the measure, emphasising that host states may not unilaterally impose restrictions on freedom of expression across the borders of the European Union without due regard for the rule of law.

5. The United Kingdom and the dynamics of collaborative platforms:

The Online Safety Act 2023

    The ongoing debate in the United Kingdom highlights how broad legislative definitions of digital technologies can inadvertently threaten non-profit digital infrastructures that serve the public interest.

   Under the UK’s Online Safety Act 2023 (OSA), ‘Category 1’ online services are subject to extensive legal obligations, including a duty to ‘empower users’ under Section 15 to allow users to filter out content from unverified accounts .

     In the case of Wikimedia Foundation and Others v Secretary of State for Science, Innovation and Technology (11 August 2025), the host of the Wikipedia website challenged the threshold regulations set out in the Online Safety Act. The Wikimedia Foundation argued that Wikipedia’s collaborative editing model – in which anonymous and attributed edits are dynamically merged – is functionally incompatible with an identity verification mechanism.

    Isolating edits from unverified users would render the encyclopaedia unusable, which would constitute a breach of Article 10 (freedom of expression) of the European Convention on Human Rights.

  The High Court, presided over by Judge Johnson, dismissed the European Convention on Human Rights claims as premature.

   Applying the strict ‘victim status’ criteria reaffirmed by the European Court of Human Rights in the case of ‘Swiss Anti-Espionage Association v. Switzerland’, the court ruled that, as the Office of Communications (Ofcom) had not finalised the Category 1 listing or classification of Wikipedia, the applicants had failed to establish a ‘risk of a future breach’ with sufficient concreteness.

     As regards the substance of the challenges relating to the interpretation and rationality of the law, the court upheld the Secretary of State’s regulations, ruling that the Secretary of State had acted rationally in relying on high-quality research carried out by Ofcom, and that the legislature was entitled to set objective and broad criteria rather than ad hoc decisions.

6. Comparative Analysis and Judicial Interpretation

    Comparative analysis and judicial interpretation reveal differing legal classifications of the same legal issue and the technical burden involved.

   In the United States, age verification is considered an incidental, content-neutral burden and is assessed under moderate judicial constitutional scrutiny, thereby reducing the constitutional obstacles facing the states .

   While in the European Union, whilst the substantive right to the protection of minors is highly valued, the legal system focuses on the country-of-origin rule and the strict two-tier procedural approach under Article 3(4) of the E-Commerce Directive . 

  Administrative cases in France and Italy show that platforms established in EU Member States (such as Cyprus) are protected from abuses by the host state, unless those states fully comply with the requirements for notification and consultation.

   Finally, the UK’s experience serves as a warning that a failure by legislative bodies to narrow the scope of definitions may ensnare non-commercial collaborative platforms serving the public interest, such as Wikipedia, thereby threatening to fragment the open internet under the guise of safety.

7. Conclusion

Striking a balance between freedom of expression and child protection in the digital age is not merely a technical challenge, but a matter central to the constitutional framework.

 Recent judicial consensus agrees on the urgent need to protect minors. However, the legal approaches taken vary considerably: the United States applies a lenient standard of scrutiny with regard to ‘incidental’ restrictions, whilst the European Union imposes a strict procedural framework to preserve the single digital market; administrative courts exercise close oversight of regulatory compliance.

  As digital platforms continue to evolve, the challenge remains to implement verification systems that are secure, privacy-preserving and procedurally sound, protecting children without fragmenting the global flow of knowledge or restricting adults’ freedom of expression online.

Angélica Lomba (master's student in European Union Law at the School of Law of University of Minho and Legal Intern specialising in Digital Law, with a particular focus on the GDPR and the AI Act)

Introduction 

As we enter the digital age, more services are becoming entirely digital, especially in the video game industry. This is a trend we have been seeing recently, even with Nintendo games, where the “physical” version is no longer physical – because even if you bought the box with the cartridge, you would not be able to play the game until you have downloaded it. The game is not inside the box; it is just a “digital key” that allows you to download and, subsequently, access the game.

Following this trend, Sony recently announced the cessation of the disc format releases starting in January 2028,^[1] citing players’ growing preference for digital versions over physical media. 

This development raises serious concerns, both regarding consumer protection and the issue of property rights. We may be entering a period in which the right to property, whilst formally recognised, is becoming increasingly hollow. This right is well established in European law: it is addressed by Article 345 of the Treaty on the Functioning of the European Union and enshrined in Article 17 of the Charter of Fundamental Rights of the European Union.

Article 17(1) of the Charter reads: “Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions except (…) in the cases and under conditions provided for the law, subject to fair compensation”.^[2] Deprivation is therefore not absolutely prohibited, but it must always be legally grounded and accompanied by adequate compensation.

The question this article seeks to address is whether that guarantee is effectively upheld in the context of digital gaming. 

What does it mean to possess something, and why are we witnessing its decline?

Firstly, what we need to understand is that, due to the complete transition to digital gaming that PlayStation is prepared to make – apparently based on players’ interests –, even our option to own a physical copy of a new game released after January 2028 will disappear.

Thus, what consumers will be purchasing is the right to download a licence.

Actual ownership will give way to what might be described as “non-ownership”: something you buy ceases to be something you own.^[3]

The legal basis for this shift lies in end-user licence agreement with thousands of words, that most consumers do not read. Which in substance means: “you don’t own the [games] you bought; you merely license them. That is to say, you have the permission to [play] them. Until one day, you don’t”.^[4]

This is not a hypothetical concern. Following the end of an agreement with the production company StudioCanal, Sony removed more than 500 films and TV shows that users had purchased from the PlayStation Store, without any compensation.^[5]

PlayStation’s current terms of service in Europe are contributing to highlighting the violation of our right to access the highest level of protection as consumers – in accordance with Article 38 of the Charter and Articles 12 and 169 of the Treaty on the Functioning of the European Union – with regard to the provision stipulating the permanent deletion of PlayStation user accounts and any digital games contained therein after three years of inactivity, subject to a notice period of just six months.^[6] Hence the loss of the guarantee of preservation, which demonstrates that the regulatory vacuum surrounding property rights in digital assets is not merely a technical shortcoming, but undermines the European Union’s stated commitment to being a rights-based digital regulator.

These terms reflect a significant imbalance between the parties, within the meaning of Article 3 of Council Directive 93/13/EEC, under which the licensor retains extensive unilateral powers, whilst the consumer bears the associated risks without equivalent safeguards.^[7] At the same time, this constitutes a failure to ensure equal treatment under Articles 20 and 21 of the Charter – a principle which, in contexts of structural disparity, requires that the weaker party be afforded greater protection, not less.

This situation also entails the loss of other rights associated with ownership. Consumers will no longer be able to do what they see fit with their games: lend them, swap them or resell them. They lose the right to freely dispose of them. This confirms the argument mentioned earlier: the right to property is becoming hollow, a mere illusion. 

Furthermore, Sony’s decision creates a significant imbalance in the market. By depriving consumers of the ability to resell games which, in principle they have already purchased (when in fact they basically acquired a licence), Sony retains exclusive control over sales. 

This, in combination with the ability to create great exclusive storylines accessible only through their latest gaming consoles, PS5, may reinforce Sony’s control over particular distribution channels, reduce consumer choice, and weaken competition. This allows Sony to maintain what is known as the “Sony tax” and higher prices,^[8] key factors in securing its abusive dominant position in the market – behaviour strictly prohibited by Article 102 of the Treaty on the Functioning of the European Union. As a result, the consumer will be forced to buy from the PlayStation Store, discontinuing the options available from retailers and resellers, such as FNAC or CeX. We could take Bloodborne as an example. The game has a large and loyal community base and highly responsible for the creation of a new genre of video games – the soulslikes.^[9] Consumers can only play this game on PS4 or PS5. Even though we have the physical version in stock today, if Sony’s decision moves forward, exclusives will only be obtainable through their store. Therefore, it might form part of a broader assessment of platform power, exclusivity, and consumer choice. To make matters worse, Sony also decided to stop releasing its single-player exclusive titles on PC.^[10]

This shows that Sony’s decisions contribute to planned obsolescence in gaming,^[11] whereby Sony and other companies can perpetuate full control over the market and “gaslight”^[12] the consumer. 

This demonstrates a failure to respect Article 21 given that access to new games is becoming increasingly difficult for consumers on lower incomes, when, in fact, the games industry should be promoting and facilitating access so that everyone can enjoy its creations, regardless of their social background.^[13]

In light of these concerns, a Dutch non-profit organisation, Stichting Massaschade & Consument, has brought legal proceedings against PlayStation,^[14] seeking compensation of 400 million euros for anti-consumer practices.^[15]Previously, a similar complaint regarding the 30 per cent commission charged by Sony on digital markets was also reported in the United Kingdom.^[16]

We have also noted complaints from France, notably from the consumer organisation UFC-Que Choisir,^[17] and from the US, based on the same issue: Ubisoft’s decision to shut down the online servers for The Crew. Meanwhile, legal proceedings are ongoing, and it is public knowledge that the company has stated that the cases are “based on a ‘faulty assumption’ of video game ownership”.^[18] Furthermore, it was announced recently that Mexican lawmakers are set to file an antitrust complaint against PlayStation, allegedly for the same reasons as those mentioned above: anti-competitive practices.^[19]

For these reasons, we can conclude that this is becoming a global phenomenon.

These legal proceedings demonstrate that Europe is already failing to guarantee consumers’ rights without judicial intervention, partly by allowing the type of contractual clauses described above to be applied unchallenged and on the basis that the existing legislative framework fails to provide the protection it promises, as we shall see below.

Before that, and considering what we have been stating, it is necessary to consider the Stop Killing Games initiative.^[20]

 Stop Killing Games initiative and underlying legislative problems

This initiative aims to elicit a response from the European Commission regarding the alleged breach of our property rights and consumer rights in this sector, through Regulation (EU) 2019/788,^[21] which guarantees citizens the right to address the Commission directly when the intention is to submit a legislative proposal – to which the European Commission had already officially responded on 16 June 2026.

In its response, the Commission stated that the European Union has, to date, ensured a high level of protection for consumers’ interests, through the various legislative instruments at its disposal, but primarily due to Directive (EU) 2019/770.

As set out in Article 3, this directive applies to any contract for the supply or provision of a digital product or service for which a consumer has paid or has undertaken to pay a price.^[22] This makes the directive suitable for regulating contracts relating to video games.

Under Articles 7 and 8, digital content must always meet the conditions necessary to ensure conformity, such as the “description, quantity and quality, and possess the functionality, compatibility, interoperability and other features”^[23]required by the contract. Otherwise, liability will fall on the trader, as provided for in Article 11, as will the burden of proof, in accordance with Article 12. However, there are cases in which consumers assume this role, due to a lack of cooperation on the part of traders, pursuant to Article 12(5).

Besides, the reason why the Commission attached particular significance to this directive in the first place lies in the remedies it grants to consumers, depending on the root cause of the problem – whenever the trader fails to supply the digital product or service, or it lacks conformity.

In the first case, the solution lies in the supply itself or, if that is not possible, the consumer may exercise their right to withdraw from the contract – Articles 13(2) and 15. In the second case, the same option is available, alongside the possibility of obtaining a proportionate reduction in price, in accordance with Article 14(4).

We now come to the point we were heading towards:

The right of withdrawal is a right exclusive to the consumer, acting as a safeguard to protect consumers from any adverse effects arising from the trader’s conduct. This brings us back to the question raised earlier: why do Sony’s terms of use allow it to unilaterally terminate the contract, when the European Union should remain vigilant and, above all, protect the consumer?

The European Commission put forward intellectual property rights as a counterargument, claiming that keeping servers permanently active (the main issue raised by consumers in this petition, namely the company’s ability to shut them down remotely) could infringe upon those rights, but, above all, could have economic and reputational implications.

Firstly, as we have briefly discussed until now, the right to property, the right to own something as the transition to digital happens is being replaced by a right to access, by a license conceived by the gaming company. In other words, we understand that when we buy a game, it is not our game, it remains theirs. We simply have the right to access a copy, that can be revoked at any time of their choosing. So, basically our consumers’ rights are shrinking to an idea of “own[ing] nothing and be happy about it”.^[24]

This means that the companies have an advantage in relation to the consumer because they are fully aware of their intellectual property rights, copyrights and the way they can use them to their advantage on the market. This comes from the fact that most consumers are unfamiliar of their rights, leading them to a false belief of ownership, mostly because of the company’s marketing strategy. Many times, especially in online shopping, consumers click “buy” or “add to cart” without understanding or being aware that what they have just purchased is not owned, but merely licensed.

On the other hand, the intellectual property rights remain on the side of the companies, valuing their creative works and productivity, as stated in Article 17 (2) of the Charter. In essence, both consumers’ and companies’ rights are important, but they are not on equal footing to begin with. Consumers’ property rights in relation to the copy is shrinking, while their position in relation to intellectual property was never one of ownership at all, that right has always remained, and continues to remain, with the creator.

Based on the foregoing, we understand that when we buy a game, we are gaining access to a copy of something created by someone else. The intellectual property rights remain with the creator. The same applies when we buy a book. We pay for it, we can read it, but we know that the story in question is a creative work by a specific author and therefore belongs to them. Even so, we do not expect librarians to come to our homes demanding the return of books, unless they have been borrowed from the library. Nevertheless, we have a genuine ownership with games we do not.^[25] In response, it would make sense that, when advertising these products, the approach would be different to people have full scrutiny and comprehension about what they are in fact acquiring or more correctly paying to have access to, as games are becoming closer to streaming subscribing rather than a one-time payment product.

Indeed, on the PC market, there exists a community of modders^[26] for games. They take the original game and modify it, to create a different experience for the end user. This might be harder to achieve on a gaming console, but it is still possible. On the condition that these modders do not claim the art, the code, the music, the characters or the story as their own, do not profit from sharing the mods or sell illicit copies of the game, then intellectual property or more precisely their copyright is not really at risk. And if they do, companies can use legal procedures to force them to be removed. 

In fact, this can be proven by the Sony v Datel ruling. In this matter, the Directive 2009/24/EC related to the protection of computer programs was brought to question in proceedings before the Court of Justice of the European Union,^[27] initially taken to a federal German court in which Sony alleged a violation of its copyrights and demanded fair compensation after Datel created software that ran at the same time as theirs and introduced new gaming features such as unlimited boost and the access to new drivers without the need to earn points to unlock them. The player to have access to it, would simply need to download it to their PC RAM and then be able to incorporate those bonuses in the original game. From Sony’s perspective that was precisely the problem, as the company interpreted this as an alteration of its original software, therefore a violation of its intellectual property rights.

Considering this, the German federal Court referred two questions to the CJEU, which ruled in favour of Datel, because the Court understood that the main goal of the Articles 1 to 3 of this Directive was not affected as the running program did not enable the content to be reproduced or subsequently created.^[28]

On the other hand, upon closer examination of the supposed cost-cutting efforts undertaken by companies, we have concluded that most of the pressure stems from measures taken by the companies themselves. There is always a choice. A game company can, in any case, release an offline game rather than an online one, allocate fewer resources to reduce costs, and adopt other measures. Sometimes, as demonstrated by Sandfall Interactive, the studio behind Clair Obscur: Expedition 33, less is more.

Another option could be to establish an end-of-life cycle for online games. In other words, companies should draw up a plan for when they decide that the servers for online games are no longer profitable. For example, Warner Bros.’ Multiversus, which was shut down in May 2025, allows players who purchased the game to keep their saved data and play it offline. Essentially, whenever a game server is to be shut down, publishers could provide a version of the game that no longer required a connection to the servers or update it to allow it to be played offline or on a local server.^[29]

Despite this, there is an underlying ambition to maximise profit, and to that end, it proves useful to restrict the consumers’ access to games they have already purchased, for the purpose of driving further sales. Not to mention that games are becoming increasingly more expensive. If online games were genuinely a disadvantage, none of these companies would make them. 

Furthermore, the economic principle is already covered by Article 14, referred to above. This Article clearly reflects the attention paid to each case brought under this directive and the proposed solution to it.

The real difference and the actual problem with the contractual clauses of gaming companies lie in their attempt to predetermine the outcomes, even before the product has reached the market. Strictly speaking, these companies are attempting to predefine a commercial practice without any legal basis conferring such a possibility upon them.

Bearing this in mind, we propose a possible response, which could, in future, be considered a breach of compliance under Article 8 of Directive (EU) 2019/770 and constitute a possible update to Article 3 of Directive (EU) 93/13/EEC as a complementary legislative instrument in such situations. Furthermore, we propose the creation of a new directive aimed exclusively at regulating the gaming sector in depth.

Moreover, we emphasise and support the idea proposed by the Commission of making an industry code of conduct.

Conclusion

Although the Commission has recently stated that it will not interfere in decisions taken by companies^[30] – whether they sell games online or in other formats – it must act regarding terms of use, as consumer rights end up being mere recommendations and become ineffective. There is no doubt that this situation needs to be resolved, so that our values do not remain merely words on paper and nothing more.

A prime example is a recent court case between a Brazilian Xbox user and Microsoft, which the user won, as the final ruling required Microsoft to restore access to his account – access that had been lost due to a cyberattack and in relation to which Microsoft had attempted to shirk its responsibilities on the basis of the terms of use, forcing him to purchase games he had already bought. ^[31]

This represents a major shift in the trend shown by companies to shirk their responsibilities.

On the other hand, it is encouraging to see people standing up and demanding the rights to which they are entitled and which our societies recognise as fundamental democratic values.

We cannot allow the most powerful companies to profit at the expense of our rights. A first step has already been taken, and this could mark a turning point not only for consumers, but also for those who simply enjoy a good story and unforgettable characters after a stressful day, to unwind from the pressures of everyday life.

So, above all, this could be a victory not only for gamers, but also for a truly democratic society.

^[1] Sid Shuman, “Physical disc production ending in January 2028 for new games releasing on PlayStation consoles”, PlayStation.Blog, July 1, 2026, https://blog.playstation.com/2026/07/01/physical-disc-production-ending-in-january-2028-for-new-games-releasing-on-playstation-consoles/; Tom Gerken and Laura Cress, “PlayStation will stop releasing games on discs in 2028”, BBC News, July 1, 2026, https://www.bbc.com/news/articles/c0ryjyvjq41o.

^[2] Luís Couto Gonçalves and Maria Miguel Carvalho, “Article 17 – Right to Property”, in The Charter of Fundamental Rights of the European Union: a commentary, ed. Alessandra Silveira et al. (Braga: JusGov/UMinho Law School, 2024), 181.

^[3] Aaron Perzanowski and Jason Schultz, The end of ownership: personal property in the digital economy (Cambridge, MA: MIT Press, 2016), 6.

^[4] Perzanowski and Schultz, The end of ownership, 2. 

^[5] Gerken and Cress, “PlayStation will stop releasing games on discs in 2028”. 

^[6] Rasmus Larsen, “PlayStation can delete all your digital games after 3 years of inactivity”, FlatpanelsHD, July 6, 2026, https://www.flatpanelshd.com/news.php?subaction=showfull&id=1783340582. The most relevant terms of use are the numbers 21.2 and 21.3. Sony Interactive Entertainment Network Europe Limited, “PlayStation Terms of Service”, version 12, last updated April 2026, accessed July 11, 2026, https://www.playstation.com/en-dk/legal/terms-of-service/.

^[7] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, Official Journal of the European Communities L 95, April 21, 1993, 29-34, http://data.europa.eu/eli/dir/1993/13/2022-05-28.

^[8] Consequently, it is estimated that the digital versions cost around 47% more in comparison with the physical versions. Sherif Saed, “Games are almost always cheaper in shops, says new report, just as Sony announces an end to Playstation discs and brings retailers’ futures into question”, Eurogamer, July 9, 2026, https://www.eurogamer.net/retail-shop-games-cheaper-report-sony-ending-playstation-discs; others suggest it costs around 40-90% more, C. da Costa, “Data just proved that physical PlayStation games can be up to 90% cheaper than buying them digitally”, Yahoo Tech, July 10, 2026, https://tech.yahoo.com/gaming/articles/data-just-proved-physical-playstation-182511392.html.

^[9] Brian Shea, “The soul of Soulslike”, Game Informer, July 3, 2026, https://gameinformer.com/feature/2026/07/03/the-soul-of-soulslike.

^[10] Sal Romano, “Sony Interactive Entertainment to no longer release single-player games on PC”, May 18, 2026, Gematsu, https://www.gematsu.com/2026/05/sony-interactive-entertainment-to-no-longer-release-single-player-games-on-pc.

^[11] Matthew Winglet, “Digital graveyards: addressing video game obsolescence through a preserved games mandate”, North Carolina Journal of Law & Technology, v. 27, iss. 4 (2026): 583-616, https://scholarship.law.unc.edu/ncjolt/vol27/iss4/3.

^[12] Winglet, “Digital Graveyards”, 594. 

^[13] Laura Cress, “Does the UK video games industry have a class problem?”, BBC News, July 16, 2025, https://www.bbc.com/news/articles/cvg9jeg2nxgo.

^[14] Lewis Packwood, “Sony faces Dutch lawsuit over ‘artificially high PlayStation prices’”, GamesIndustry.biz, June 26, 2025, https://www.gamesindustry.biz/sony-faces-dutch-lawsuit-over-artificially-high-playstation-prices.

^[15] Kyle Gratton, “PlayStation facing $450 Million lawsuit following physical media announcement”, Screen Rant, July 7, 2026, https://screenrant.com/playstation-450-million-lawsuit-physical-media/; Saed, “Games are almost always cheaper”; Ted Litchfield, “Dutch consumer group suing PlayStation argues the end of physical discs just proves its point: ‘Sony alone decides what a game costs and even how long you are allowed to use it’”, PC Gamer, July 12, 2026, https://www.pcgamer.com/gaming-industry/dutch-consumer-group-suing-playstation-argues-the-end-of-physical-discs-just-proves-its-point-sony-alone-decides-what-a-game-costs-and-even-how-long-you-are-allowed-to-use-it/.

^[16] Packwood, “Sony faces Dutch lawsuit over ‘artificially high PlayStation prices’”.

^[17] Leo Marchandon, “French consumer group sues Ubisoft over shutdown of online game ‘The Crew’”, Reuters, March 31, 2026, https://www.reuters.com/technology/french-consumer-group-sues-ubisoft-over-shutdown-online-game-the-crew-2026-03-31/.

^[18] Chris Kerr, “Ubisoft tells the crew players they never actually owned the game”, Game Developer, April 10, 2025, https://www.gamedeveloper.com/business/ubisoft-tells-the-crew-players-they-never-actually-owned-the-game.

^[19] Ulises Contreras, “Mexican lawmakers to file antitrust complaint against PlayStation and Sony over PS Store following the potential end of physical games”, LEVEL UP, July 12, 2026, https://www.levelup.com/en/news/mexican-lawmakers-to-file-antitrust-complaint-against-playstation-and-sony-over-ps-store-following-the-potential-end-of-physical-games/.

^[20] Ross Scott et. al, Stop Killing Games, 2026, https://www.stopkillinggames.com/en.

^[21] Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative, Official Journal of the European Union, L 130, May 17, 2019, http://data.europa.eu/eli/reg/2019/788/2024-05-02.

^[22] Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services, Official Journal of the European Union, L 136, June 22, 2019, http://data.europa.eu/eli/dir/2019/770/oj, Article 13.

^[23] Directive (EU) 2019/770, Article 7(a).

^[24] Richard Stewart, Michael B. Charles and John Page, “A future with no individual ownership is not a happy one: Property theory shows why”, Futures 152 (2023): article 103209, https://doi.org/10.1016/j.futures.2023.103209.

^[25] Even in relation to an eBook a videogame is at disadvantage because it requires online access, while the eBook does not.

^[26] Modding is a colloquial term for modification, Margherita Manca, “Modding, videogames, and copyright: what is legal and what is not? (C-159/23)”, Canella Camaiora, March 10, 2025, https://www.canellacamaiora.com/modding-videogames-and-copyright-what-is-legal-and-what-is-not-c-159-23/.

^[27] Court of Justice of the European Union or as in this moment forward CJEU.

^[28] Judgment CJEU Sony Computer Entertainment Europe Ltd v Datel Design and Development Ltd and Others, 17 October 2024, case C-159/23, ECLI:EU:C:2024:887, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62023CJ0159.

^[29] Chris Scullion, “US Bill requiring paid games to be playable after they shut down has failed to pass a senate vote”, Video Games Chronicle, June 30, 2026, https://www.videogameschronicle.com/news/us-bill-requiring-paid-games-to-be-playable-after-they-shut-down-has-failed-to-pass-a-senate-vote/.

^[30] Zack Zwiezen, “EU can’t force Sony to keep making physical games, says consumer rights commissioner”, Kotaku, July 10, 2026, https://kotaku.com/eu-cant-force-sony-to-keep-making-physical-games-says-consumer-rights-commissioner-2000714728.

^[31] Adam Corsetti, “Microsoft loses lawsuit after blocking hacked Xbox account with digital games”, Notebookcheck, July 11, 2026, https://www.notebookcheck.net/Microsoft-loses-lawsuit-after-blocking-hacked-Xbox-account-with-digital-games.1339855.0.html.

Picture credit: by Ron Lach on pexels.com.

Dr Samira Allioui, Centre d'études internationales et européennes, Université de Strasbourg

Photo credit: Alexas Fotos, via Wikimedia Commons

On 3 September 2026, the Court of Justice of the European Union (the Court) delivered its judgment in Case C-798/24, Jautiva, addressing the compatibility of unrestricted public access to shareholder information with European Union (EU) company law and data protection rules. The CJEU ruled on the conflict between, on the one hand, the right to the protection of personal data and, on the other, national legal provisions—derived from European Union law—requiring the public disclosure of information regarding the shareholders of public limited companies. The Jautiva case addresses precisely where that boundary lies. This approach is not new; it follows on from the WM and Sovim judgment of 2022 (Joined Cases C‑37/20 and C‑601/20), in which the CJEU had already called into question public access to ultimate beneficial owner (UBO) registers and where the judges had already cast doubt on unrestricted public access to beneficial ownership registers.

WM and Sovim SA v. Luxembourg Business Registers (LBR): an ode to business confidentiality?

As a reminder, in the WM and Sovim judgment, the CJEU had already called into question public access to registers of beneficial owners. The judgment represented a serious setback to European Union efforts to promote fiscal and financial transparency and to enhance the effectiveness of the fight against money laundering. Making beneficial ownership registers public was one of the key tools for identifying a company’s true owner and, in doing so, lifting (at least in part) the veil on illicit schemes that facilitate money laundering and tax evasion.

The cases in question concerned the transposition into Luxembourg law of Article 30(5), first subparagraph, point (c) of the 2015 money laundering Directive, as amended in 2018 (the Fifth Anti-Money Laundering Directive or "5AMLD"). In accordance with 5AMLD, the legislation had structured the Luxembourg Register of Beneficial Owners (RBE) so that information regarding the beneficial owners of registered entities could be stored and made available; access to this data was open to any member of the general public. In certain exceptional circumstances and on a case-by-case basis, a beneficial owner or registered entity could request the register administrator—LBR—to restrict access to specific authorities or entities. After a beneficial owner and a company challenged decisions by the LBR rejecting their requests to restrict public access to information concerning them, the referring court—the Luxembourg District Court—considered that the disclosure of such information could entail a disproportionate risk of infringing the fundamental rights of the beneficial owners concerned. It therefore asked the Court, inter alia, to verify the validity of the EU provisions regarding access to information on beneficial owners.

The Court first noted that, since the data in question includes information on identified natural persons—namely the beneficial owners of companies and other legal entities established within the territory of Member States—access to that data by any member of the general public infringes the fundamental right to respect for private life.

Furthermore, making such data available to the general public constitutes the processing of personal data. Such disclosure represents a serious interference with the fundamental rights enshrined in Articles 7 and 8 of the EU Charter of Fundamental Rights (CFR), given the potential for subsequent use of the disclosed information.

Admittedly, the Court had already had the opportunity to point out that certain data processing operations—even those that do not reveal significant information about individuals' private lives—can nonetheless constitute an infringement of their privacy when the data, taken as a whole, expose individuals to a "risk of profiling." However, it is important to point out that in those cases, the Court reached this conclusion either by highlighting the “sensitive nature of the information that such data may reveal” or because the data in question made it possible to draw very precise conclusions regarding the individuals’ daily habits, activities, and social relationships (the Digital Rights judgment, para 27).

However, as Advocate General Pitruzella noted in his Opinion on the case (at para 101), the risk of profiling enabled by the public nature of the registers was limited, both because it was not possible to conduct searches by individual and because identifying a person’s investments provides only a limited insight into their assets.

The concept of "legitimate interest": an inadequate remedy for the lack of public access to registers in WM and Sovim SA

When examining the justification for this interference, the Court confirmed that the provision regarding public access to the information complies with the principle of legality, does not infringe the essence of the fundamental rights, pursues an objective of general interest, and can be considered appropriate for achieving that objective.

However, the Court held that the interference could not be considered limited to what is strictly necessary. In this regard, the Court compared the amended provisions with the previous provision, which required organizations or individuals to demonstrate a "legitimate interest" before gaining access to information on beneficial owners. Furthermore, the Court held that any difficulty in precisely defining the circumstances and conditions under which such a "legitimate interest" arises does not justify the EU legislature providing the general public with access to that information.

In addition, the Court emphasized that the interference at issue is not proportionate stricto sensu. Thus, the optional provisions allowing Member States to make information on beneficial owners available subject to online registration and to provide, in exceptional circumstances, for an exemption from public access to that information are not, in themselves, capable of demonstrating either a fair balance between the general interest objective pursued and the fundamental rights enshrined in Articles 7 and 8 of the Charter of Fundamental Right (CFR), or the existence of sufficient safeguards enabling the persons concerned to effectively protect their personal data against the risk of abuse.

Consequently, the amended point (c) of the first subparagraph of Article 30 of the AML Directive—which requires Member States to ensure that information on the beneficial owners of companies and other legal entities incorporated within their territory is accessible to any member of the general public in all circumstances—is invalid.

The Court emphasized that the EU legislature had not struck the right balance regarding the fight against money laundering. There were fears at the time that this would "have fraudsters rubbing their hands with glee," and these rulings sparked anger among activists, who were shocked that a court would side with the leaders of tax havens at the expense of public transparency. Others, however, maintained that this represented a victory for data protection and the rule of law within a highly politicized context.

While in WM and Sovim SA v LBR, the Court annulled the 5AMLD provision granting the public access to beneficial ownership registers, Jautiva applies the same logic to a different dataset: declarations by shareholders of public limited companies.

Following the WM and Sovim judgment, several registers went beyond what the ruling required by withdrawing entire datasets. In several Member States, this practice remained effectively suspended while national regimes based on "legitimate interest" were being established.

Background of the Jautiva case: a clarification of public access to shareholder information

The Jautiva case arose when 17 minority shareholders of a public limited company challenged legislation requiring shareholder information to be made publicly available online. For natural persons, this information included their identity and contact details, as well as the class, number, and nominal value of the shares held and the associated voting rights. This information was accessible to unidentified users and could therefore be downloaded in bulk.

To justify this disclosure regime, Latvia cited three main objectives: preventing money laundering and the financing of terrorism and proliferation; ensuring a transparent economic environment and protecting third parties; and facilitating compliance with national, international, and EU sanctions.

To determine whether EU company law required such disclosure and whether unrestricted access was compatible with the GDPR (Articles 7 and 8 of the CFR), the Latvian Constitutional Court referred the matter to the Court. In its request, the Constitutional Court, among others, sought clarification, as to whether EU company regulation requires information on every shareholder of a joint-stock company to be made publicly available and whether such disclosure of personal data is permissible under the GDPR.

Article 14 of the Company Law Directive requires the disclosure of information concerning certain persons who represent a company or participate in its administration, supervision, or control. In its reasoning, the Court rejected the argument that this concept extends to any shareholder. Indeed, whereas persons involved in the administration or supervision of a company are appointed to specific roles and exercise corresponding powers, shareholder status derives from holding a stake in the share capital. In particular, minority shareholders do not exercise management or supervisory functions simply by virtue of holding shares, nor do they generally represent the company or bind it in dealings with third parties. The Court therefore concluded that the Company Law Directive does not require information concerning every shareholder to be made available to the public.

Disproportionate access but legitimate objectives

Next, the Court examined whether Latvia could nonetheless provide for unrestricted public access under its national law. While the objectives cited by Latvia could constitute legitimate objectives of general interest, this did not exempt the disclosure regime itself from meeting the requirements of necessity and proportionality laid down in the GDPR and the CFR.

The Court held that such public disclosure constituted a serious interference with the rights protected by Articles 7 and 8 of the CFR. The information made public could enable the creation of a profile regarding a person’s financial situation, the sectors in which they invest, and the companies in which they hold shares. These concerns were heightened by the fact that the information was accessible online to a potentially unlimited number of people and could subsequently be stored and disseminated (§71).

In light of recent events in Latvia, where several public databases were subjected to cyberattacks and large-scale personal data breaches, the observation made by the Court in paragraph 72 is particularly relevant:

"The potential consequences for the data subjects resulting from any misuse of their data are aggravated by the fact that, once such data have been made accessible to the public, they can not only be freely consulted but also stored and disseminated, and that, in the event of such successive processing operations, it becomes increasingly difficult—if not impossible—for those persons to defend themselves effectively against misuse."

Regarding corporate transparency

The Court considered that the disclosure of information concerning all shareholders—particularly minority shareholders who do not exercise management or control functions—did not appear necessary for the protection of third parties.

Objectives related to combating money laundering and complying with sanctions regimes did not justify unrestricted access either. Given the existence of less intrusive solutions—such as limiting access to persons who can demonstrate a legitimate interest and, for sanctions purposes, adopting more targeted disclosure methods—the existence of a recognized public interest objective does not, in itself, justify making personal data freely accessible to everyone.

Necessity and proportionality

In WM and Sovim v LBR, the Court held that unrestricted public access to beneficial ownership information constituted a serious interference with the rights protected under Articles 7 and 8 of the CFR and went beyond what was strictly necessary for AML purposes.

Jautiva applies the same proportionality considerations in the context of registered shareholders which is relevant in particular for minority shareholders who may neither qualify as beneficial owners under applicable thresholds nor exercise control over the company. The judgment does not prevent Member States from maintaining company registers or providing access to shareholder information. However, it does confirm that the manner in which personal data are made available must remain consistent with the GDPR principles of purpose limitation, data minimisation and proportionality. It should be noted that Directive 2024/1640, part of the sixth money laundering package (adopted after the WM and Sovim judgment), already provides for access to beneficial ownership information by members of the public who can demonstrate a legitimate interest, alongside the access available to competent authorities and obliged entities. In other words, the current EU AML framework has already moved towards a more restricted model of access.

Legitimate interest and the limitations surrounding access to ownership-related personal data

Jautiva confirms that access to such information cannot be treated as unlimited and remains subject to the requirements of necessity, proportionality and data protection. Here, the Court reiterates that transparent is not an end in itself by holding that the Company Law Directive does not require the disclosure of information relating to all shareholders, including minority shareholders. In addition to that, it held that the GDPR precludes national legislation making personal data relating to shareholders of public limited liability companies available to the general public where access is not subject to any conditions, such as demonstration of a legitimate interest.

It is surprising that the legitimacy of the objectives provided by Latvian law has not been called into question. More precisely, Latvian law provided for public access to data concerning all shareholders of a public limited company, including minority shareholders, for the purposes of combating money laundering, terrorist financing and the proliferation of weapons of mass destruction, as well as implementing international and European sanctions.  

The dual scope of the decision

First, it should be noted that the tools available to obliged entities to fulfil their due diligence obligations, and to competent authorities, are not called into question by the judgment. Second, the imposition of sanctions or the pursuit of AML/CFT objectives does not justify unlimited public access. Indeed, the Court advocates instead for the implementation of differentiated access regimes based on the objective pursued and the status of the requester. However, it is worth considering who will henceforth be able to claim a legitimate interest justifying access to this information.

By confirming that the disclosure obligations imposed by European Union company law cannot be interpreted as automatically extending to information concerning all shareholders—and that national measures providing for broader public access to such information remain subject to the GDPR as well as the principles of necessity and proportionality—the Jautiva judgment marks a new milestone in Court case law regarding the interplay between corporate transparency and the protection of personal data.

Conclusion

Given that these are distinct legal categories—potentially entailing different obligations regarding access, reporting, and disclosure for investors, international groups, and companies—the judgment underscores the importance of clearly distinguishing between the exercise of corporate functions, the holding of shares, the exercise of control, and the status of beneficial owner.

On the one hand, the judgment clarifies that a national regime authorizing unlimited and unconditional online access to the personal data of all shareholders must meet a strict test of necessity and proportionality. On the other hand, the judgment provides an important clarification regarding corporate transparency: EU law does not require the public disclosure of information concerning every shareholder of a public limited company simply by virtue of their status as a shareholder.

More specifically, the significance of this judgment does not lie in pitting the protection of privacy against transparency as mutually exclusive values. Rather, the judgment requires that any disclosure obligation be based on a legal basis and remain proportionate to the objective pursued.

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Dr Meltem Ineli Ciger, Associate Professor of International Law, Süleyman Demirel University

Photo credit: Maksym Kozlenko, via Wikimedia Commons

On 1 October 2026, the Court of Justice delivered Case C‑249/25 (Jilin), its fourth preliminary ruling on the Council Directive 2001/55/EC (Temporary Protection Directive, ‘TPD’) since the Directive was activated for people displaced from Ukraine. It follows Joined Cases C‑244/24 and C‑290/24 Kaduna (19 December 2024), Case C‑753/23 Krasiliva (27 February 2025) and Case C‑195/25 Framholm (20 November 2025), all discussed on this blog (here, here and here). The question in Jilin is: can a Member State suspend processing of applications for international protection of temporary protection beneficiaries until temporary protection ends? The Court’s answer is no, subject to an exception for cases of ‘objective impossibility’. This post summarises the judgment and then examines what the Court left undefined. It criticises the absence of any explicit reference to international refugee law as well as the requirements of necessity and proportionality in the Court’s assessment.

·         The facts and the questions referred

UB, a Chinese national of Uyghur origin, arrived in the Netherlands on 7 March 2022 with his Ukrainian wife and their child, and applied for asylum on 13 April 2022. During the examination, the Dutch authorities found that, as the family member of a Ukrainian national who had lived in Ukraine before 24 February 2022, he qualified for temporary protection. They therefore stopped examining his asylum claim, on the basis that it could resume once temporary protection expired (para 22). Article 43a of the Dutch Aliens Act 2000 allows this: for temporary protection beneficiaries, a decision on an asylum application may be taken at any time up to six months after temporary protection ends (para 19).

UB sent a formal notice of default in January 2024 and then brought an action for failure to act. The District Court of The Hague held that the 21‑month maximum time limit had started to run when the application was lodged, ordered the Minister to decide within eight weeks. On the Minister’s appeal, the Raad van State asked the Court of Justice two questions:

(1)   Does Article 17(2) of the TPD allow Member States to suspend the examination of an application for international protection made by a temporary protection beneficiary for the duration of temporary protection?

(2)   Do the time limits in Article 31 of the Directive 2013/32/EU (Asylum Procedures Directive, ‘APD’) start or resume running only when temporary protection ends, where the application was made before or during temporary protection?

Article 17(1) of the TPD provides that ‘[p]ersons enjoying temporary protection must be able to lodge an application for asylum at any time’; paragraph 2 adds that ‘[t]he examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period.’ Article 31 of the APD sets the timetable for the regular procedure. A decision must be taken within six months of the lodging of the application (Article 31(3)). That period may be extended by up to nine months where complex issues of fact or law arise, where a large number of people apply simultaneously, or where the delay is attributable to the applicant; in duly justified circumstances, it may be exceeded by a further three months. Where the situation in the country of origin is uncertain but expected to be temporary, the decision may be postponed, subject to six‑monthly reviews (Article 31(4)). ‘In any event’, the procedure must be concluded within 21 months of the lodging of the international protection application (Article 31(5) of the APD).

Under Article 4 of the TPD, temporary protection should have lasted no more than three years. In practice, the Council has repeatedly prolonged the regime for people displaced from Ukraine, most recently until 4 March 2028 (Council Implementing Decision (EU) 2026/1912). In doing so, it has turned an exceptional, time‑bound emergency response into an open‑ended EU policy (see here, here, here and here). On the Dutch reading, an asylum claim lodged in spring 2022 might not have to be decided until late 2028.

·         The judgment

The Court joined the two questions and reformulated them as whether Article 17(2) of the TPD and Article 31 of the APD preclude national authorities from ‘automatically suspending’ the examination of international protection applications lodged by temporary protection beneficiaries, so that the decision time limit does not begin or continue to run until temporary protection has ended (para 34). The Court said yes and noted that such an automatic suspension is unlawful, whilst clarifying that Member States may only temporarily defer individual examinations beyond statutory deadlines in exceptional circumstances where strictly necessary to address an objective impossibility and prevent system collapse (para 64). The judgment provides three reasons.

First, the Court held that Article 17(2) of the TPD only governs what happens to applications not processed before the end of the temporary protection period. It says nothing about whether MS can suspend asylum applications during temporary protection (para 38) (This is also in line with Skordas’ assessment here p. 1213). Temporary protection should not prejudge recognition of refugee status under the 1951 Convention (Article 3(1)); beneficiaries must be able to apply for asylum ‘at any time’ (Article 17(1)); and a person whose asylum application is rejected continues to enjoy temporary protection (Article 19(2)). The Court noted that the legislature, in light of all these provisions, therefore envisaged that asylum procedures would run during temporary protection (paras 39–41). The Court, in line with the AG opinion, reasoned that the Commission’s original proposal included an option to suspend asylum procedures during temporary protection, but Member States could not agree on it and dropped it. No such power can therefore be read into Article 17(2) by implication (paras 42–44, following points 42–45 of Advocate General Campos Sánchez‑Bordona’s Opinion).

Second, the Qualification Directive and the APD apply to all applications for international protection, and nothing excludes applicants who already enjoy temporary protection. Article 31 of the APD time limits therefore apply ‘in principle’ to them as well (paras 45–48). In the Court’s view, Article 31 already takes account of pressure on asylum systems: it allows an extension of up to nine months where large numbers apply simultaneously, a further three months in duly justified circumstances, and postponement for an uncertain situation in the country of origin, all within the 21‑month limit (paras 49–53).

Third, a general and automatic suspension is not necessary to achieve the Directive’s aims (para 54). The TPD is meant to protect asylum systems from being overwhelmed, but it is also meant to ensure that beneficiaries keep ‘a real opportunity to obtain international protection’ once their situation has been examined (para 56). An EU‑wide activation of temporary protection does not mean that every Member State faces more applications than it can handle (para 58). When temporary protection expires, the authorities would face exactly the simultaneous surge of applications that temporary protection was supposed to prevent (para 59).

Having rejected automatic or a blanket suspension, the Court nonetheless recognised an exception. The Court noted it cannot be entirely excluded that a considerable number of applications lodged by temporary protection beneficiaries over a short period will make it ‘objectively impossible’ for a Member State to decide them all within the Article 31 time limits, ‘despite all the reasonably conceivable measures to deal with such an influx’ (para 60). In that case, the State may take measures such as examining applications in phases and setting priorities. This may lead it to defer the examination of some applications temporarily, even if not every application can then be decided within the Article 31 time limits (paras 61–62). National courts must check, in each case, that a missed deadline is not the product of a general and automatic suspension and results only from measures that are necessary to deal with the objective impossibility (para 63).  

·         Analysis

1. The tension of the judgment with the logic of temporary protection

The judgment sits uneasily with how temporary protection is usually understood. Under Article 2(a) TPD, the very purpose of immediate, group‑based protection is to avoid an asylum system being overwhelmed by a mass influx (para 35). In international practice, temporary protection has generally worked by suspending individual refugee status determination.

Jilin confirms that the EU took a different path in 2001. The Member States considered a suspension power and chose not to adopt one (para 42). What they kept instead was Article 19(1), which allows States to provide that a person cannot hold temporary protection and asylum‑seeker status at the same time. The result of the Jilin is that, in EU law, temporary protection can run alongside the asylum procedure. Whether that model can actually deliver on the aim stated in Article 2(a) is a fair question. The Court answers that Article 31 APD already provides the flexibility needed (para 53).

2. An exception that leaves much to explain

The difficulty is that the Court then created an exception that it barely defines. Four questions are left open. What counts as ‘objective impossibility’? The Court requires a ‘considerable number’ of applications ‘over a short period’ and the exhaustion of ‘all the reasonably conceivable measures’, but gives no threshold, no indicators and no burden of proof. Whether a State has hired enough staff, reallocated resources or used the accelerated procedures available to it will be argued case by case before national courts.

How does the exception fit with Article 31 itself? At para 53 the Court tells us that Article 31 already reflects the legislature’s ‘due consideration’ of pressure caused by simultaneous applications, which is why automatic suspension is unnecessary. However, paras 60–62 allow those same calibrated limits to be exceeded.  

Does it reach beyond 21 months? Article 31(5) of the APD requires the procedure to be concluded ‘in any event’ within 21 months. The operative part of the judgment allows deferral ‘including by exceeding that decision‑making period’, without saying whether the 21‑month limit is included. If it is, the Court has created a judge‑made derogation from a limit the legislature described as absolute.  

For how long, and for whom? Deferral must be ‘temporary’, and concern only ‘some’ applications, but the Court sets no outer limit and gives no criteria for prioritisation. Nothing in the judgment prevents a MS from prioritising other caseloads and leaving temporary protection beneficiaries at the back of the queue, which is the outcome Jilin was meant to prevent.

The exception will also apply unevenly. Para 58 makes clear that the test is specific to each State. The relevant variable, however, is not how many temporary protection beneficiaries a Member State hosts but how many asylum applications they lodge in a short period (para 60). Can a MS hosting large numbers of Ukrainians who never apply for asylum not rely on the exception? Can only Germany, Poland or Czechia make use of this possibility? What about other MS hosting a smaller number of temporary protection beneficiaries? These are the questions, in my opinion, left open.

3. What is missing? The international refugee law dimension and the doctrine of derogation

The international refugee law is absent from the judgment. The TPD makes explicit reference to the 1951 Convention. Recital 10 states that temporary protection ‘should be compatible with the Member States’ international obligations as regards refugees’ and ‘must not prejudge the recognition of refugee status pursuant to the Geneva Convention’, and Article 3(1) repeats the point. All Member States are parties to the 1951 Convention and its 1967 Protocol; Article 78(1) of the TFEU requires the EU’s asylum policy to be in accordance with the 1951 Convention, and Article 18 of the Charter guarantees the right to asylum ‘with due respect for’ the Convention.

This matters because temporary protection, conceived as a short emergency response, now routinely becomes protracted. Temporary protection for people displaced from Ukraine will have lasted six years by March 2028. When protection is prolonged, suspending individual status determination can no longer be explained simply as managing an emergency. The 1951 Convention contains no general derogation clause (cf. Durieux and McAdam 2004).  One of the issues which deserved attention, in my opinion, was therefore whether a State Party to the 1951 Convention may, for years, deny people who may well be refugees access to the asylum procedure through which they can claim the Convention rights that build up with lawful and durable stay. However, one should frame such a departure from the Convention as a derogation, as a necessity under general international law or by analogy with human rights derogation clauses; any derogation must be necessary, proportionate and temporary (see, for a fuller analysis, section 2 of this article). International refugee law scholarship has examined this question in depth (cf. Edwards 2012; Durieux 2014). I argued that a genuine mass influx may justify temporarily setting aside individual procedures. It is far less clear that a suspension lasting several years can meet the requirements of necessity and proportionality under international or EU law.

The Court did not engage with any of this. Its analysis stays within the relationship between the TPD and the APD. It never addressed or took into account whether deferring asylum procedures for up to six years is compatible with the 1951 Convention, even though Recital 10 and Article 3(1) of the TPD point straight to that question. It is worth mentioning the Advocate General’s Opinion (paras 60-65), in which he relied on Article 18 and on Article 52(1) of the Charter; he came close to taking these issues into account. Ironically, the outcome of Jilin is broadly what an international law analysis would support: no automatic, open‑ended suspension. But because the Court reached it through EU asylum acquis alone, it left the exception in paras 60–63 without an explicit necessity and proportionality framework that international law would have supplied.

Conclusion

Jilin is quite a vague judgment that leaves much to be discussed, especially given the new exception it introduces to the ban on general suspension of asylum procedures. Although the Court relied on objective impossibility as a ground, it does not make clear when Member States may continue to defer the processing of international protection claims lodged by temporary protection beneficiaries.

Jilin is the CJEU’s fourth preliminary ruling on the TPD, and it repeats a pattern visible in the earlier three. The Court reads the Directive carefully on its own terms and contrasts it with another instrument of the EU acquis but engages little with the international origins of temporary protection, its relationship with the 1951 Convention and leaves unresolved the basic tension between prolonged temporary protection and Member States’ obligations under the 1951 Convention.  

The judgment will matter well beyond UB’s case. Since 12 June 2026, applications lodged after that date are governed by the Asylum Procedures Regulation (Article 35 of Regulation (EU) 2024/1348), which shortens the extension for large numbers of simultaneous applications to six months, though it does not impact the backstop 21-month time limit. Jilin’s reasoning, that the general asylum time limits apply to temporary protection beneficiaries unless the legislature provides otherwise, is likely to carry over to the new regime. The exception created by the judgment may become even more attractive to States as a result. As the Court itself warned (para 59), Member States that suspended asylum claims face the prospect of a surge of pending decisions when temporary protection ends in March 2028. Jilin requires them, to a certain albeit vague extent, to start deciding on those claims now.

Dr. Chiara Scissa, Department of Social and Political Sciences, University of Bologna

Photo: 2026 forest fires in Fontainebleu, by Jdkxhdjj, via Wikimedia Commons

New book: Disaster Displacement and International Protection in the EU. Challenges, Misconceptions, and the Way Forward (Routledge, 2026)

Disasters trigger over three times more displacements than conflict and violence and rank among the principal drivers of displacement worldwide. Whereas other world’s regions have reached significant achievements – including Africa with the IGAD Protocol on Free Movement of Persons recognizing free movement for IGAD citizens affected by disasters, Latin America with the 2025 Inter-American Court on Human Rights’ Advisory Opinion acknowledging the applicability of international protection in disaster contexts, and the Pacific with relevant regional and bilateral initiatives on climate mobility -, this is not the case for the European Union (EU). The EU lags behind with no common protection avenue for people displaced across borders in the context of disasters, and with only three Member States - Italy, Cyprus, and Finland – that currently offer an explicit provision to that effect.

In this book, I interrogate the asymmetry between the magnitude of the phenomenon and the poverty of the legal response in the EU, and argue that the protection gap is not attributable to a lacuna in positive law, but to the defective application and interpretation of norms already in force and restrictive asylum policies. The right path to follow would, in my opinion, not lie in the codification of a new status for the so-called “climate refugees”, a category I do not endorse, but the principled, evolutive application and interpretation of existing norms that already bind the Union and its Member States.

Central to the book is the identification of three compounding challenges that have so far contributed to hindering the recognition of protection in the context of disaster displacement in the EU: 1) the misconceptualization of disasters in legal and policy instruments; the rigid application and (sometimes controversial) interpretation of international protection norms; and 3) the deterrence paradigm increasingly endorsed by the EU and its Member States to curb access to asylum.

The first challenge: Misconceptualization of disasters.

A first major challenge, which is persistently present in relevant legal and operational EU disaster frameworks from the very outset to the latest developments in this area, concerns the reference to “natural disasters” as part of the definition. This formulation does not only contradict scientific evidence and established scholarly work in the field of disaster studies, according to which disasters are the product of hazards in combination with the social environment in which they unfold, but also undermines asylum claims based on, or associated with, disaster displacement. Indeed, where a disaster is perceived as something purely natural, and hence beyond human control, it risks creating a fictitious separation between situations attributable to human actions and those perceived as naturally occurring. Seen as the manifestations of the uncontrollable forces of nature, disasters can therefore hardly fall within the net of protection. Likewise, the attribution of State’s responsibility in disaster contexts, and the related failure to protect, is hardly explored.

The second challenge: Misinterpretation of refugee law tenets.

Closely related to the misconceptualization of disasters is the second identified challenge, namely the issue of rigid, and sometimes controversial, application and interpretation of international protection norms in the context of disaster displacement. From a careful and in-depth literature review and case law analysis, available in Chapter 2, what stems is that disaster-related asylum claims have been often, and hastily, dismissed. Respectively, refugee status is denied in this context on some recurring grounds: disasters do not amount to persecution; they disclose no nexus to a Convention ground; they do not discriminate and produce no individual harm; they cannot constitute actors of persecution; and have no intention to persecute. These propositions recur in the Commission’s own documents (2013; 2022) and in the jurisprudence of the Member States. As for subsidiary protection, this is frequently set aside due to the fact that the harm stemming from disasters is not explicitly listed among the components of serious harm pursuant to Article 15 of the Qualification Directive (now Qualification Regulation). In addition, the requirement for serious harm to stem from an intentional act or omission, which was first coined by the EU Court of Justice in M’Bodj (2014) but has no place either in EU asylum law or in the 1951 Refugee Convention, has already led national asylum judges to dismiss subsidiary protection claims. In Italy and France, for example, the combination of misconceptions surrounding the notion of disasters and challenges in applying a principled interpretation of serious harm led national courts to swiftly dismiss disaster displacement-related claims, reserving short paragraphs or even just one sentence of their judicial analysis to explain the exclusion of disaster displacement from subsidiary protection.

Finally, the book looks at the internal protection alternative (IPA) for people displaced in the context of disasters as a further protection tenet subject to fragmented and inconsistent practices among the Member States. In Austria, the relevance of disasters in the IPA assessment seems to depend on the claimant’s country of origin and the judge adjudicating the case instead of the severity of the disaster and its human rights implications on the applicant. In Nordic countries, disasters seem to have almost never been taken into account by competent authorities in the context of an IPA assessment. Hence, disasters’ integration into the IPA assessment is far from being standardized in the EU, which means that the decision on the availability of internal relocation in the claimant’s country of origin is a bit of a lottery with severe repercussions on asylum seekers coming from disaster-prone countries.

The third challenge: the logic of deterrence.

Before actually writing the book, in that phase where concepts and words are chaotically appearing on paper together with some random arrows in the attempt to make sense of everything, I realized that the first two challenges identified showed why disaster displacement is hardly recognized as a legitimate ground for protection. But that was the last stage of a complicated and often incomplete process. Actually, for people displaced in the context of disasters, it is extremely hard to even reach and get the chance to stay in the territory of the EU Member States to seek protection. This is because disasters themselves can hinder people’s arrival at destination. This is the case of thousands of migrants crossing the Mediterranean Sea in the attempt to reach Italy, who have drowned because of extreme weather events, including storms and cyclones. Likewise, asylum seekers attempting to reach the EU through the Balkan route are exposed to drowning in rivers as well as to freezing temperatures along the way and extreme cold weather deaths from hypothermia. In doing so, disasters can interact with deterrence policies preventing arrivals. Italy’s efforts to stop disembarkations in addition to disasters, which make the sea crossing perilous and relief operations unfea­sible, claimed the life of 380 people in January 2026.

At the same time, disasters can interact with deterrence policies aimed at curbing access to the asylum procedure.

The book presents emblematic examples of EU-led deterrence policies and how they interact with disasters following Gammeltoft-Hansen and Tan’s categorization. These include development cooperation, accelerated procedures based on the safe country notion, and externalization agreements. All these examples corroborate that deterrence makes it harder, if not totally unlikely, not only for disasters to be recognized, but even identified as a cause of displacement. On the contrary, deterrence policies are contributing to perpetuating its invisibility in asylum adjudication. Indeed, the result of ongoing, and progressively more restrictive, asylum pol­icies at the Union and national levels is the continued lack of attention toward disaster displacement in asylum adjudication, thus making their exclusion from protection a persistent issue.

Concluding remarks.

My aim with this book is twofold and only time will tell me if I somehow managed to get closer to it. On the one hand, I hope to make more students interested in this topic, which fascinates me and deserves further attention, especially from young and fresh minds. On the other hand, I sincerely hope this book will reach in one way or another policymakers and decisionmakers across the world, and especially in the EU, as all the described challenges have to do with decisions made at the political and judicial level. This book explains why the persistent use of the term “natural disaster” in legal texts should be definitely abandoned, describes the risks associated with superficial asylum adjudication, and warns against the alarming combination of disasters with deterrence policies for people seeking protection. May those entrusted with making, enforcing, and interpreting the law find meaningful insight within these pages - ever mindful that abstract policy carries concrete, and often indelible, consequences for human lives.

Download the open-access version here.

Purchase a hard copy here.

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Professor Steve Peers, Law School, Royal Holloway, University of London

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“Living next to [the United States] is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

-          Pierre Trudeau, former Prime Minister of Canada

Introduction

Can Canada become an ‘associate member’ of the EU? What might that mean, and how might a process to this end work? There are few details yet, but this blog post explores the broad parameters of the law and politics of such a possibility.

The Legal Framework

Canada is not seeking to be a Member State of the EU – a process governed by Article 49 TEU. Nor is it seeking to sign an association agreement – as referred to in Article 217 TFEU. Rather the status under discussion is that of ‘associate member’ – a concept not referred to in the EU Treaties.

However, the absence of an explicit reference to such a concept does rule out an agreement to create such a thing. EU external relations law is replete with the creation of new categories of relationship to address the political priorities of the day, such as ‘Euro-Mediterranean Agreements’, ‘Europe Agreements’ and ‘Partnership and Cooperation Agreements’, to name just some.

In fact, the absence of a formal concept of ‘associate member’ leaves the EU and Canada free to innovate both the procedure and content of their relationship. Instead of being bound by the ‘staircase’ metaphor that came to dominate EU/UK post-Brexit relations, Canada and the EU can just take the elevator – although the underlying trade-off (greater market access in return for greater alignment with the EU) is likely to remain in some form.

Unlike membership or association, the ‘associate member’ concept does not necessarily even imply a treaty; Canada and the EU can simply declare the existence of such a status at the upcoming summit. Associate membership is an unidentified legal object; but it can still be a definite political outcome.

Nevertheless, both the EU and Canada have said that they expect something concrete to develop from deepening their relationship, even if it does not have the title of ‘associate member’. Let’s look at what each of them has recently said.

Issues for negotiation

In her State of the Union speech, the EU Commission President Ursula von der Leyen stated:

We will move from CETA to an Alliance for the Future to create a common prosperity and economic security space. We will work on intelligent manufacturing. We will create a tech alliance. We will integrate defence industrial bases. We will make the Arctic a flagship joint project. We will work on energy, critical minerals and batteries. On AI, quantum, cyber and economic security.

(CETA is the existing EU/Canada free trade agreement).

In his speech to the European Parliament, Canadian Prime Minister Mark Carney said:

Canada and Europe should secure our strategic autonomy through deep cooperation in the full range of strategic capabilities, including critical minerals, defence industrial capacity, AI and compute, energy security, space, and payments.

We should move toward seamless, digital trade in non-agricultural goods and a wide range of services.

We should deepen our people-to-people ties, allowing our youth to live, work and study where they want on either side of the Atlantic.

Canadian membership of Erasmus+ can give your students, and ours, more opportunity to learn at some of the world’s top universities, to broaden their horizons, and to build lasting ties that will sustain our alliance for the future.

Canadian membership of the next generation of Horizon would allow us to pool resources, cooperate on frontier technologies, and leverage our world-class research institutes and universities.

Yesterday, President von der Leyen announced a “new European Corporation on Critical Raw Materials” to obtain and stockpile the material needed for electric cars, chips and batteries, clean technology, and defence. Canada has deposits of over 34 critical minerals, and we are among the top producers of the 10 most essential for the world’s energy transition. Our alliance can help fill Europe’s need for reliable supply, Canada’s need for advanced processing capabilities, and our common objective to build complete value chains.

Canada can contribute LNG and hydrogen at large scale to support Europe’s energy security including by developing and leveraging new port infrastructure in the High North and on our East Coast. We, in turn, can benefit from your leadership in many clean energy technologies.

We can pool new sovereign compute capacity and build more secure broadband connections between Europe and Asia via our common geography.

Canada and Europe can join forces to develop AI safety protocols, coordinate common standards, and strengthen transparency, all while developing applications so our governments and companies can serve our citizens better. 

Canada and Europe should also consider exploring an integrated market for financial services to broaden choice and reduce costs for our citizens, improve access to capital for our companies while maintaining our world-leading financial resilience.

Comparing the two, we can see that there are more details offered on the Canadian side. There are several points in common: energy, defence industries, critical minerals, AI and computing. But it is notable that Carney raises two issues not mentioned on the EU side: financial services and youth mobility.

There is no inherent reason why the various issues for further cooperation all have to addressed in a single treaty. Some of them might be addressed better by commercial negotiations between companies (supported by governments/the EU on each side), and some might be addressed by non-binding ‘soft law’ encouraging developments. The EU tends to prefer single overarching treaties, but has compromised on this goal with Switzerland (settling for a common institutional framework for some EU/Swiss treaties), and the UK (there is a single treaty, but with different rules for different parts of it; it is effectively several separate treaties wearing a single trenchcoat). Further EU/Canada developments could follow either model.   

On one issue in particular – youth mobility – the obvious parallel is with EU/UK relations, where the EU seeks to negotiate its first youth mobility treaty (EU Member States have a number of such arrangements already, including agreements with Canada). Since the UK/EU negotiations have not concluded yet, there is no final template which could just be copied; and in any event, there is no reason for such arrangements to be identical (the UK’s youth mobility schemes differ greatly). Despite the existence of schemes between Canada and many Member States already, there could be added value in extending these schemes for longer than one year, or (as the EU has demanded from the UK) agreeing equal treatment in tuition fees.

It is possible that individual future treaties between the EU and Canada will raise legal issues on both sides: tuition fees, for instance, could fall within provincial jurisdiction on the Canadian side, and the EU courts have twice been asked already about the compatibility of EU/Canada treaties with EU law – the investment provisions of the EU/Canada free trade agreement, and the data protection rules in the EU/Canada passenger name records treaty.  (The various processes for referring issues to the Supreme Court of Canada to resolve their constitutionality broadly resemble the process of asking the CJEU to rule on whether planned treaties are compatible with EU law, set out in Article 218 TFEU).

However, one striking feature of EU external relations is that despite their legal complexity, the EU usually gets to where it wants to go in the end, even if (as with the EU/Canada passenger name records treaty) a planned treaty has to be amended to be compatible with EU law. (Member States do not have a veto on all treaties with non-EU countries; this depends on their subject-matter, and economic issues such as trade are subject mostly to qualified majority voting. Nor do Member States always have to be parties to treaties alongside the EU).

The broader context

Although neither the Commission President nor the Canadian Prime Minister mentioned the elephant by name, the underlying dynamic of the EU and Canada seeking a closer relationship is the current administration of the United States – which is far from friendly or even-tempered towards Canada, the EU, or most of the rest of the world (other than Putin’s Russia and North Korea). But despite the silence, the listeners to the speeches in the European Parliament – and the broader audience outside – knew exactly who was being referred to. As a great Canadian once sang, everybody knows that the dice are loaded. And yet, Trump might still manage to bankrupt another casino.

There’s a historical resonance to this conflict too. Growing up in Canada, I was never far from a War of 1812 battlefield; studying Canadian history, it is striking how much of the basic foundations of the Canadian state developed as a reaction to threats from the United States. In recent decades, characterised by alliance and friendship between the two countries, this history of conflict began to look ancient, but now the old threats are new again. Donald Trump has never met an ally he didn’t hate.

Further development of EU/Canada relations might face legal and political complications; after all, several Member States have still not ratified CETA (it’s being applied provisionally). But any differences of opinion will not result in the EU threatening annexation or economic coercion, renaming lakes, or posting violent memes about Canada on social media. Both sides are free to develop their relationships elsewhere (as they are doing). And if Trump – as threatened – imposes tariffs against the EU as a result of its friendship with Canada, the EU can quickly retaliate.

As for less aggressive partners, it’s not clear just how close Canada’s relations with the EU might become, for instance compared to Norway, Switzerland or the UK. The plans seem to fall short of full participation in the internal market or free movement of people. On youth mobility in particular, though, it’s possible that Canada might leapfrog the UK, given the slow pace of UK/EU talks. As another great Canadian once sang, this would be ironic indeed: the good advice that the UK just didn’t take on Brexit.

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Antje Kunst*

Photo credit: Lucalupe, via WikimediaCommons

Introduction

In 2024, a new procedural requirement was introduced whereby appeals against General Court judgments delivered in proceedings brought under Article 272 TFEU (jurisdiction to rule on arbitration clauses in contracts concluded by or on behalf of the EU), are subject to an appeal filtering mechanism established by Article 58a of the Statute of the CJEU.

Since 1 September 2024, parties seeking to appeal a General Court judgment in an action brought under Article 272 TFEU must demonstrate that their appeal raises ‘an issue that is significant with respect to the unity, consistency, or development of Union law’. By contrast, no such admissibility requirement applies to appeals against judgments of the General Court in actions brought under Article 263 TFEU (actions for annulment), which may be pursued by staff seconded to Common Security and Defence Policy (CSDP) missions or in actions brought under Article 270 TFEU (staff cases).

The implications of the appeal filtering mechanism are particularly significant for staff serving in CSDP missions as contracted staff. In the absence of a EU Staff Regulations framework comparable to that applicable to ordinary EU civil servants, such staff cannot bring employment-related disputes under Article 270 TFEU. Instead, they must rely on an arbitration clause contained in their employment contracts, with Article 272 TFEU providing the procedural basis for bringing such disputes before the EU courts.

This blog argues that extending the Article 58a appeal filter to cases brought under Article 272 TFEU does more than reduce the workload of the Court of Justice. The reform further restricts, for contracted staff serving in CSDP missions the opportunities to obtain judicial review by the Court of Justice, in an area where access to judicial review is already subject to constraints, including those arising from Article 275  TFEU and Article 24(1) TEU.

The amendment therefore raises a broader constitutional question: can the  objective of reducing the Court’s workload legitimately come at the expense of effective judicial protection and meaningful access to judicial remedies for contracted staff serving in CSDP missions? The reform also raises concerns about equal treatment. It creates a distinction between, on the one hand ordinary EU civil servants and seconded staff serving in CSDP missions who have the possibility of appealing to the Court of Justice, and, on the other hand, contracted staff, who are denied equivalent access to appellate review.

Key Aspects of the New Requirement

Pursuant to the 2024 amendment to Article 58a of the Statute an appeal against the General Court in proceedings concerning ‘the performance of a contract containing an arbitration clause, within the meaning of Article 272 of the [TFEU]’ may proceed only if the Court of Justice first grants leave to appeal.

The admissibility threshold for appeals by contracted staff serving in CSDP missions is demanding. An appellant must demonstrate that the appeal raises ‘an issue that is significant with respect to the unity, consistency or development of Union law’. It is therefore no longer sufficient to argue that the General Court committed an error in its interpretation of the law or assessment of the facts in the individual case. Instead, the appellant must establish that the issue extends the interests of the individual litigant and demonstrate why its resolution matters for the EU legal order as a whole.

The appeal therefore requires a form of ‘second-level’ justification: first, the appellant must identify alleged errors of law in the judgment, second, and critically, the appellant must explain why that error raises an issue significant for the unity, consistency or development of Union law. (see the Court Order of 29 April 2025 in SC v Eulex Kosovo (Case C-881/24), the first case to which the new appeal filter was applied). In this respect the test is comparable to the approach of the UK Supreme Court which filters appeals according to whether they raise an ‘arguable point of law of general public importance’.

The Court of Justice determines whether the conditions laid down in Article 58a of the Statute are satisfied by means of a reasoned order rather than a judgment. Where leave to appeal is refused, the judgment of the General Court becomes final, thereby bringing the litigation to an end without substantive review by the Court of Justice.

What raises a wider issue?

In employment disputes involving contracted staff of CSDP missions, appellants must identify a legal issue that extends beyond the particular employment relationship or factual circumstances of the CSDP mission concerned. This requirement may be met where an appeal raises, for example, a question  of EU law that could affect numerous contracted staff across different CSDP missions; where existing case-law is uncertain or inconsistent; or where clarification by the Court of Justice would contribute to  a coherent and consistent body of EU law applicable to all staff serving in the Union.

An appellant might be able to convince the Court that its interpretation of a fundamental right in a CSDP employment dispute could have implications beyond that specific context and provide guidance for future disputes in other areas of EU  law, such as EU restrictive measures, public procurement, competition or migration and asylum.  This may include disputes involving other EU bodies, missions or other actors subject to EU law. (see in this respect paras. 22 and 24 of the Court Order 29 April 2025 in SC v Eulex Kosovo (Case C-881/24))

Furthermore, an appellant might be able to successfully argue that the case raises a question of principle concerning the scope of the Court’s jurisdiction under Articles 24 (1) TEU and 275 TFEU, in particular whether and to what extent the Common Foreign Security Policy (CFSP) limitations on judicial review apply to employment-related decisions in CSDP missions. This question could have implications beyond the individual dispute, including for comparable cases involving other CSDP missions, EU bodies, or categories of EU personnel. It could also have broader implications for the principle of effective judicial protection under EU law, particularly where the contested measure affects fundamental rights or other rights protected by EU law.

Rationale for an appeal filter related to decisions of Boards of Appeal

The appeal filtering mechanism was first introduced in 2019 for appeals brought before the Court of Justice against judgments of the General Court concerning decisions of the Boards of Appeal (BoAs) of certain EU offices and agencies.

The EU legislature focussed primarily on the EU agencies with powers over intellectual property rights, plant variety rights, chemicals regulation and aviation safety (EUIPO, CPVO, ECHA and EASA). The rationale was that decisions in these areas had already undergone administrative review by a specialised BoA and judicial review by the General Court, while a significant number of appeals were manifestly inadmissible or unfounded (see here).

In practice, this admissibility requirement has constituted a substantial threshold, with the Court of Justice permitting only a limited number of appeals to proceed beyond the initial filtering stage.

Rationale for an appeal filter related to Article 272 TFEU disputes

The 2024 extension of the Article 58a filtering mechanism to appeals concerning Article 272 disputes was justified primarily by considerations of judicial efficiency. The legislator’s rationale was that such disputes most frequently require the General Court to apply, to the substance of the dispute, the national law to which the arbitration clause refers. (see here) Such appeals would generally be less likely to raise issues of EU law.

A CSDP employment dispute is an atypical Article 272 TFEU dispute

A CSDP employment dispute will rarely require the application of national law (see  JF v EUCAP Somalia) and is not a typical Article 272 TFEU dispute. Disputes involving contracted staff of CSDP missions often involve mission-specific instruments, such as Standard Operating Procedures (SOPs) and Operation Plans (OPLANs), as well as the analogous application of certain provisions of the EU Staff Regulations (see the judgment in Montanari v Eucap Sahel Niger). They may also involve the application of general principles of EU law and fundamental rights to contractual disputes (see JF v EUCAP Somalia), as well as questions concerning the scope of the Court of Justice’s jurisdiction in the CFSP context (see H v Council and Others, even if a seconded CSDP staff case ). This makes it particularly important to ensure that restrictions on access to an appeal before the Court of Justice do not prevent the development of authoritative guidance on questions affecting 1300 civilian staff working in CSDP missions, especially since only contracted staff, and not their seconded colleagues, are required to seek permission to appeal when challenging General Court judgments.

Where the EU Staff Regulations do not apply to such staff, the case law has established that the applicable legal framework derives primarily from the employment contract and mission specific instruments such as SOPs, supplemented, where relevant, by the analogous application of certain provisions of the EU Staff Regulations as well as certain general principles of EU law and the Charter of Fundamental Rights, as illustrated by JF v EUCAP Somalia.

Precisely because the legal framework governing CSDP contracted staff remains fragmented and continues to evolve, there is a strong argument that effective appellate review is of particular importance in this area.

Moreover, an appeal to the Court of Justice is not necessarily merely a second level of review. It may provide an important opportunity for the Court to give authoritative clarification of unresolved jurisdictional and constitutional questions concerning the scope of judicial protection in the CFSP context.

Conclusion

The appeal-filtering mechanism introduced by Article 58a of the Statute of the Court of Justice places international contracted staff serving in CSDP missions at a significant disadvantage compared with other categories of EU personnel in terms of access to appellate judicial review. EU staff subject to the EU Staff Regulations may bring claims under Article 270 TFEU, while seconded CSDP staff can bring actions under Article 263 TFEU. By contrast, international contracted staff whose disputes fall under Article 272 TFEU face an additional – and potentially insurmountable – hurdle when challenging a General Court judgment before the Court of Justice.

This disadvantage is all the more significant because the legal framework governing employment within CSDP missions remains fragmented and continues to develop. Restricting access to the Court of Justice therefore risks limiting not only the right of individuals to effective judicial protection, but also the development of a coherent and authoritative body of case law on employment within CSDP missions.

The Court of Justice can do little to remedy the disadvantage created by Article 58a of the Statute itself; addressing this issue is a matter for the EU legislature that should not be delayed.

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields including staff cases. She has appeared in numerous cases before both the Court of Justice and the General Court of the Court of Justice of the European Union.  She acted as Counsel for JF in JF v EUCAP Somalia, Case 194/20. She represents SC in SC v Eulex Kosovo, Case C-881/22, and obtained the Court Order of 29 April 2025.

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Wannes Bellaert, PhD researcher and academic assistant, Ghent University

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Once again a new Europol legal framework

On the 24^th of June 2026, the European Commission proposed a new legal framework for Europol (i.e. the European Union Agency for Law Enforcement Cooperation). As reflected in the preparatory documents and the proposal itself, the intentions are clear: extending Europol’s competencies, while refraining from remedying existing shortcomings in Europol’s accountability framework.

Back then, when candidate Commission President Von Der Leyen suggested making Europol a “truly operational police agency”, uncertainty reigned over what she intended. Both the preparatory documents and the proposal demonstrate that a European FBI is still far off. Nonetheless, the European Commission envisages an expansion and codification of several elements. As regards the expansion, the European Commission envisages expanding the scope of cooperation with private parties, Europol’s Prüm competencies (ie a bigger role in the exchange of specific types of data for criminal law purposes), Europol’s interconnectivity with Member States, the obligation(s) to provide Europol data, and Europol’s presence in Member States. All of the preceding happens without remedying the existing accountability shortcomings in Europol’s legal framework.

Strengthening its competencies …

The 2016 Europol Regulation envisioned some restricted cooperation with private parties. Following the 2022 amending Europol Regulation, Europol could exchange personal data with private parties and request data via the national competent authorities to combat terrorism, extremism and online child sexual abuse material. With its proposal, the Commission proposes an overhaul and extension of these competencies to all crime areas for which Europol is competent and limiting the existing restrictions (absence of “upon their request”). In combination with Europol’s Open Source Intelligence (OSINT) collection, this could enable Europol to collect a vast amount of data, either without or with only limited involvement of the Member States. While the collection of this data is not necessarily a problem (as long as the legal framework is respected), Europol cannot conduct its own investigations, leaving open the question of where this leads.

The 2024 Prüm II Regulation enables Europol to consult national police databases when receiving information from third countries. Even though the framework is not yet operational, the Commission already proposes to extend it to data from Member States. With this extension, Europol should become more efficient and effective. Why the European Commission has refrained from offering Europol a general ability to check (including for data from private parties and EU agencies) remains unclear. National competent authorities can easily consult Prüm II, thereby limiting the purpose of extended Europol access rights based on their information. On the contrary, allowing Europol to use Prüm II based on information from private parties and EU agencies could be beneficial, as it would enable Europol to identify interested Member States. Extending Europol’s access rights for Prüm II would still leave the overarching system incomplete as Europol has no access rights to the European Criminal Record Information System (ECRIS).

With its proposal, the Commission seeks to strengthen the interconnectivity between the Member States and Europol by establishing a Europol Cloud Infrastructure. It is intended to support Member States, EU entities and third countries to access Europol’s tools, collaborative environments and other operational and analytical capabilities, including the Joint Operational Analysis Cases (JOACs). Additionally, the Europol Cloud Infrastructure should enable Member States to connect their national system to it through the EU Police Digital Identity. From the proposal, it cannot be deduced how this system will operate. It is unclear what the connection between the national system and the Europol Cloud will entail. Likewise, the impact for JOAC’s remains unclear, as they also remain part of the Europol Analytical Environment. Hence, Member States can have different JOACs in different environments. Furthermore, following the legal abolition of Europol’s pre-determined data systems (e.g. EIS), Europol created a so-called “data lake”. How this “data lake” will interact with the Europol Cloud Infrastructure remains uncertain.

Another interesting point is the obligation to provide Europol with information. For a very long time, the Europol Regulation required Member States only to provide Europol with the “necessary information”. Following the 2005 Council Decision on Terrorism, they should provide Europol with specific information on terrorism. Under the 2025 amending Europol Regulation, Europol should receive information from Member States when participating in Operational Task Forces. However, this new proposal raises several problems. While, in principle, the general obligation to provide Europol with all “necessary” information is retained, the proposed Article 38 on Europol’s cross-checking service obliges Member States to provide the service with “any data that relates to forms of crime falling within the scope of Europol’s competence”. Without any reference to the earlier necessary obligation, this entails a new obligation. Additionally, immigration liaison officers “shall provide Europol with relevant information”. This seems to diverge from the earlier “necessary” obligation once again. Furthermore, the Operational Task Forces should “ensure the continuous and structured exchange of all relevant information”. As a result, three different obligations exist concerning the provision of data. Most important is the first problem: should Member States provide Europol with all information, or only all information concerning crimes for which the Member States find it “necessary”?

Finally, one of the most interesting developments is the “support offices”. It is a misjudgement to compare these with local FBI offices; more apt is it to see them as permanent mobile offices, which Europol currently uses on action days. The Commission proposes to have Europol staff as liaison officers in the Member States “to ensure appropriate uptake by Member States of Europol’s support”. While this concerns Europol staff (thus EU staff), these should act under the responsibility of both Europol and the Member States. The Europol Management Board will set out the division of responsibilities, yet also decide on the organisation and functioning of these support offices. Additionally, the European Commission proposes provisions on the deployment of Europol staff, yet without any actual limits, leaving it open for almost all tasks. Interestingly, in this perspective, is the inclusion of: “to ensure that the outputs produced through operational support … may be used as evidence in national investigative and judicial proceedings”. If adopted, this would link deployment of Europol staff to the production of evidence, yet would not remedy the non-inclusion of the rapporteur’s failed attempt to include a similar provision in the 2025 amending Europol Regulation.

... but leaving its accountability framework untouched

When all preceding elements are combined, Europol’s competencies are clearly expanding once again. Europol should take up more tasks, but most interestingly, its ability to provide Member States with instruments and tools will significantly expand. Still, the number of and the competencies of its accountability forums have not been significantly revised in the proposal. While this could be considered a shortcoming of the European Commission, it is not. The biggest shortcoming is the European Commission’s reluctance to address existing shortcomings in Europol’s legal framework.

Undeniably, the European Data Protection Supervisor (EDPS) and Europol’s data protection officer (DPO) have a strong position to hold Europol accountable for its data processing, yet, unfortunately, without requirements concerning its staffing. Even though the FRO is offered formal independence in the proposal, its tasks remain limited, while these could be expanded and it could be provided with stronger tools to enhance its point of view. Furthermore, the annual reports of Europol’s fundamental rights officer (FRO) and DPO are not provided to the JPSG or the European Parliament. These reports should be made available on a confidential basis to these forums to enable them to be properly informed about Europol’s conduct.

Similarly, the JPSGs' and the European Parliament’s tasks have remained unchanged, without formal ability to sanction Europol or its executive director, besides the discharge procedure for the European Parliament. Meanwhile, the European Commission has proposed to strengthen its own position regarding Europol’s Executive Director. Why not the other way around? Why not allow the joint parliamentary scrutiny group (JPSG) and the European Parliament to propose the dismissal of Europol’s Executive Director? If so, the European Parliament should have the competence to request the Executive Director’s attendance at a public hearing, in contrast to the European Commission’s and the Management Board’s closed-door session. Furthermore, in the proposal, the Council’s powers are limited in comparison to the current legal framework, as it would no longer be able to appoint or dismiss the Executive Director. Europol’s Internal Investigation Service is not offered a specific legal basis either. The inclusion thereof should go alongside the inclusion of specific competencies to combat fraud and corruption within Europol (e.g. access rights to documents).

If all proposed changes are adopted, Europol’s responsibility and autonomy to tackle crime can no longer be ignored or denied. Already, Members of the German Bundestag argue that Europol is a partner, and not merely a supportive entity. As a partner, one should take responsibility and be held accountable. Therefore, besides the previously suggested changes, the immunity of Europol staff cannot be retained when performing similar tasks, as when Europol staff is part of a Joint Investigation Team (JIT), particularly given the divided responsibility (see Supra). As a result, a general waiver should be included in the EU legal framework, and a specific waiver procedure should be included in the Europol Regulation (in conformity with existing CJEU case law). Similarly, the liability of Europol and its staff should be clarified to ensure proper criminal and civil liability.

Additionally, as previously mentioned, the European Commission’s proposal falls short of offering rules concerning the testimony of Europol staff in national courts. The preceding is essential, as in a trial in Malta conflicts arose concerning this practice. The Union legislator should include specific obligations for Europol staff, e.g. when they can refuse to answer a judge, when they can refuse to appear, what information they can disclose and subject to what rules (EU or national rules).

Finally, the new proposal contains no rules concerning the use of information used as evidence in court. The 2023 Exchange of Information Directive copies the phrase of its predecessor (i.e. the Swedish Framework Decision) requiring prior approval from the providing Member State to use information as evidence, but the European Commission falls short of including rules to prevent the Europol Regulation being used to circumvent the 2023 Directive, especially with SIENA becoming the regular instrument for exchanging information. Furthermore, it offers no rules concerning the use of evidence collected as part of a JIT, even though rules have existed since the Naples II convention on customs cooperation.

More power, not more control, just the needed control

If the Union legislator were to adopt this European Commission proposal, Europol would significantly expand its competencies, yet remain a supportive agency without executive powers. Still, concerning some competencies, questions arise about their use. Concerning other competencies, the underlying relationship should be clarified to ensure Europol has a clear legal framework without contradictions. While it is common to argue for increased control over Europol when competencies expand, no additional accountability obligations are required. Europol has a strong accountability framework when considering the powers of the EDPS and its DPO. Nevertheless, shortcomings in its accountability framework exist that should be remedied to ensure Europol is held properly accountable.

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Professor Steve Peers, Law School, Royal Holloway University of London

Photo credit: Martin Robson, via Wikimedia Commons

Recently the Reform Party proposed that in government it would withdraw benefits from all non-UK citizens, including from those EU citizens who had moved to the UK before the end of 2020. It acknowledged that this would breach the Brexit withdrawal agreement (for an annotated text of the rules on EU and UK citizens’ rights under the agreement, see here, particularly Article 15).

Legally the EU response if the UK breached the withdrawal agreement on this issue (I’m assuming the Reform government would amend UK legislation as needed, to ensure that the breach was valid as domestic law) would be to challenge it in the arbitration process which the withdrawal agreement set up. (For an annotated text of the dispute settlement rules, see here). A dispute can be settled politically; if not settled, it goes to arbitration. An arbitration decision is binding, so if a party is found in breach of the withdrawal agreement, it is legally obliged to comply with the ruling.

But what if it does not comply with the ruling? The key provision is Article 178, which provides first of all that fines can be imposed upon the party that remains in breach of the treaty despite an arbitration ruling. Article 178 goes on to refer to possible additional retaliation for a continuing breach, but (in paragraph 2(a)) it says that such retaliation cannot concern Part Two of the withdrawal agreement, ie the citizens’ rights provisions. Therefore, the EU cannot respond to the UK breach of EU citizens’ rights by taking UK citizens’ reciprocal rights away. Instead, Article 178 refers to possible retaliation under other agreements (paragraph 2(b)), which brings us to the Trade and Cooperation Agreement (TCA).

The TCA has a separate set of dispute settlement rules, which I have annotated here. The key provision on links with the withdrawal agreement is Article 749(4) of the TCA. It states that a continuing breach of the withdrawal agreement can also result in suspension of parts of the TCA, ie tariffs on goods or suspension of other provisions of the agreement (subject again to some limits on the subject-matter of retaliation, ie the retaliation cannot affect social security).

The retaliation must be proportionate though, and if the party in breach argues that the amount of that suspension is disproportionate, the arbitration panel can be recalled to rule on the point (Article 178(3) of the withdrawal agreement).

One possible form of retaliation which would arguably be proportionate would be to reimpose tariffs equal to the amount of benefits EU citizens would be losing as a result of the breach, to which they would otherwise be entitled under the withdrawal agreement. So if the breach of the agreement caused EU citizens to lose €1 billion in benefits, UK goods exports would face €1 billion in tariffs. Under the World Trade Organisation, in comparable cases, the EU has targeted high profile exports from its trading partner in breach of the rules; for the UK, that might mean higher tariffs in particular on Scottish salmon or whisky, or Jaguar cars. To be clear, this is speculation – the EU might prefer another type of retaliation which is allowed under the agreements. And the EU would be charging its usual tariff rate for countries which it does not have a free trade deal with, which would only mean a big increase for some products.

It’s possible it wouldn’t get to this stage: the EU might decide to negotiate changes to the withdrawal agreement; indeed the Reform Party document states that it will ‘renegotiate’ the treaty. But a treaty can only be renegotiated if all parties agree; and it seems very unlikely politically that the EU would agree, given the priority which it placed on the issue before. (On the EU side, an amendment would need to be agreed by a qualified majority of Member States, having been proposed by the Commission, after consent of the European Parliament).

As for additional possible sanctions, the EU might, for instance, suspend talks on other issues with the UK. It could even suspend or terminate the entire TCA, although arguably the rule on proportionality of retaliation applies here. In practice, during prior disputes with the UK, the EU has preferred the negotiation and dispute settlement route rather than escalation: both the EU and the UK have previously triggered disputes under the withdrawal agreement and the later Trade and Cooperation Agreement, although only one dispute has got as far as an arbitration decision.

For instance, when the EU disputed the UK’s application of (what was then) the Northern Ireland protocol to the withdrawal agreement, it suspended talks on the UK’s participation in EU research programmes and began dispute settlement proceedings, but it put the latter on hold pending negotiations, which eventually resulted in a revised version of the protocol known as the Windsor Framework – after Liz Truss lost her nail-biting contest with a lettuce.

As for terminating the whole withdrawal agreement, as discussed further here, there is no termination clause (apart from the trade aspects of the Windsor Framework, subject to certain conditions), and in any event the EU would have no interest in terminating the basis for the Windsor Framework and the protection of its citizens’ rights. Nor does a breach of a treaty automatically terminate it, under international law – which has a whole Latin phrase (pacta sunt servanda) for the importance of upholding treaties. (Though to be fair, international law has a Latin phrase for nearly everything)

Anyway, as has been pointed out, EU citizens might choose to apply for UK citizenship before any new UK rules took effect.

All of this points to a policy that, on this point at least, seems as ill-thought-through as Mr Farage’s decision not to declare the significant gifts he received shortly before becoming an MP, including those from a convicted money-launderer.

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Dr. Meltem İneli Ciğer, Associate Professor of International Law, Suleyman Demirel University Faculty of Law, Türkiye; Honorary Fellow, School of Law and Social Justice, University of Liverpool

With comments from Professor Steve Peers, Law School, Royal Holloway University of London

Photo credit: President of Ukraine, via Wikimedia Commons

Nearly every year since I started teaching temporary protection and the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive) at the Odysseus Summer School in 2022, a familiar pattern has emerged. Each year, while updating my PowerPoint slides, the European Commission adopts a proposal to extend the temporary protection regime implemented for Ukrainians fleeing the full-scale Russian invasion. I usually read and incorporate this new development, either the Commission Proposal or the adopted Council Implementing Decision, when I am flying to Brussels. This year is no exception.

This year’s Proposal for a Council Implementing Decision (COM(2026) 345 final) marks a departure from previous practice. Aside from proposing to extend temporary protection for an additional year, namely until 4 March 2028, the Commission is proposing, for the first time, to restrict the scope of temporary protection for a specific subset of newcomers. In particular, Article 2 of the Proposal targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack explicit, official authorisation from the Ukrainian authorities to leave the country. By proposing this conditionality, the Commission is effectively linking eligibility for temporary protection to the enforcement of a home state’s conscription laws.

I have written here and here why I believe these yearly extensions run contrary to the Temporary Protection Directive itself and the risks they bring. This year, however, I will do something different. Since over the years, I have covered the legal problems with yearly extensions, I want to focus specifically on the legal questions brought by the new proposal, namely, those relating to the new restrictions it introduces.

Here, I will pose four main legal questions relating to these new restrictions and give my opinion on them. I should mention that the idea to write this post emerged from an exchange on LinkedIn, where I am a somewhat active user, and the comments I received from Steve Peers. I asked Steve to include his answers to these questions, to provide a ‘devil’s advocate’ perspective on some points. Finally, I should mention the sources that can help this analysis. You can watch the Commission’s official press conference video, where some similar questions were posed to the Commission. Additionally, a recent Council of Europe report explicitly warns about the human rights risks of the proposed restriction of scope. Of course, these legal questions will only arise if the proposal is adopted as it is. What are they?

Update: The European Commission proposal was adopted by the Council as Implementing Decision (EU) 2026/1912 on 30 July 2026 and published on 4 August 2026. The Implementing Decision (EU) 2026/1912 extends temporary protection for displaced Ukrainians (those indicated in Article 2 of Council Implementing Decision (EU) 2022/382) (Article 1). While the core initiative to condition temporary protection on compliance with Ukrainian military obligations was included in the final text, the Council introduced several operational additions. First, temporary protection will now only be granted to new arrivals who prove compliance with, or exemption from, their military obligations in Ukraine (Article 2(1) & Recital 16). The decision explicitly retains temporary protection status for individuals who enjoyed temporary protection in a Member State on or before 30 July 2026 and continuously maintain that status. The new restriction applies solely to new applicants from 31 July 2026 onwards (Article 3). Second, the Council clarified how compliance must be proved. Applicants bear the burden of proof, which can be satisfied via an official passport exit stamp, border-crossing records, or digital certification through Ukraine’s Reserv+ application (Recital 18). Third, the Decision explicitly notes that draft evasion and desertion do not, by themselves, constitute grounds for refugee status or subsidiary protection under international standards (Recital 8). Finally, the Council recommends that Member States must reject new residence permit applications under Article 8(1) of the TPD if the applicant already holds a permit in another Member State (Recital 5 and Recital 6).

Question 1: Is restricting the scope of temporary protection and excluding newly arriving military-age men from Ukraine discriminatory?

Meltem: Yes, there is a very strong legal argument that this specific restriction is discriminatory under both EU and international human rights frameworks. First, let us look at who is excluded: Article 2 of the proposal explicitly targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack official authorisation from the Ukrainian authorities to leave the country. Because martial law and mobilisation frameworks in Ukraine predominantly apply to adult males aged 18 to 60, this measure selectively excludes military-age men from receiving temporary protection in the EU in future.

Article 21 of the Charter of Fundamental Rights strictly prohibits any form of discrimination based on sex or nationality. By implementing a rule that disproportionately and systematically strips temporary protection eligibility away from mostly adult men, the proposal introduces a gender-discriminatory measure. Treating newly arriving men less favourably than women fleeing the same conflict zone creates direct friction with this principle of equal treatment. This is further reinforced by Article 14 of the European Convention on Human Rights (ECHR), which prohibits sex-based discrimination when read alongside the protection of fundamental rights under Article 3 or Article 8 ECHR (cf para 30 here). Of course, although these excluded individuals will retain their absolute right to apply for asylum under Article 18 of the Charter, this route opens up further complex legal questions. Most notably, what happens if their international protection claim is rejected?

If a Member State examines an individual’s asylum (ie international protection) claim (which can still be made, according to the temporary protection Directive, even if temporary protection is refused), and concludes that evading conscription under these specific circumstances does not meet the high threshold for refugee status or subsidiary protection, the individual is left in a dangerous legal vacuum. Because they are barred from registering as temporary protection beneficiaries by this new proposal, this may expose them to the immediate risk of a return decision. 

Update: This legal issue persists. I still argue that linking eligibility for temporary protection to a third state’s military conscription rules creates direct friction with the principle of non-discrimination. Whilst Recital 22 notes that “[t]his Decision respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union”, and Article 2(1) explicitly states that the condition applies “[w]ithout prejudice to Union law and fundamental rights”, it remains unclear how the resulting differential treatment can be justified. The Decision not only creates a distinct divide between newly arriving individuals, who must present proof of compliance with military obligations and those who enjoyed temporary protection in a Member State on or before 30 July 2026 and continuously retain that status, but it also creates a division between individuals subject to military obligations (predominantly adult males aged 18 to 60) and all other newly arriving displaced persons. The Council explicitly relies on Ukraine’s evolving defence and conscription needs (Recitals 13, 16, and 17) as the sole justification for this conditionality. However, can a third country’s military needs legitimately justify gender-disproportionate and selective treatment under EU fundamental rights standards? That for me remains highly doubtful. In a weak attempt to counter the issues concerning gender discrimination, Recital 20 notes that:

“It is possible that Ukrainian nationals who are not subject to conscription have military obligations, irrespective of their age or gender, because they enlisted or otherwise due to responsibilities related to military activities.”

So, the Council frames military compliance as a gender-neutral conditionality, which remains unconvincing. In practice, martial law and statutory conscription in Ukraine predominantly apply to adult males aged 18 to 60. Pointing to a very small minority of women who voluntarily enlist or hold specific military roles does not alter the reality that this new restriction on scope overwhelmingly impacts military-age men.    

Although Recital 8 recalls that temporary protection does not prejudice the right to apply for international protection, it explicitly adds that “in accordance with international standards, desertion and draft evasion are not considered, by themselves, to be grounds for international protection”. Newly arriving individuals with military obligations who apply for international protection but lack distinct personal circumstances justifying refugee status or subsidiary protection risk having their claims rejected and being issued a return decision. Bear in mind, the recognition rate for Ukrainians (all Ukrainians irrespective of military obligations) was around 45% in May 2026, according to the EUAA. As Steve pointed out, Member States remain bound to assess individual non-refoulement risks and ongoing conflicts and human rights conditions in Ukraine before executing any return decision. However, Member States’ approaches to evaluating such asylum claims and conducting return assessments are likely to diverge significantly in practice.

Steve: A devil’s advocate view: the Charter also provides for possible restrictions of Charter rights in its Article 52, which allows limitations on rights to support ‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. The argument here is that the EU is seeking to support the Ukrainian defence effort, which could be described either as an objective of general interest, or protection of the rights and freedoms of others. The measure is arguably proportionate as long as the return of each Ukrainian citizen in the individual case would not amount to non-refoulement (and only provided that any application for international protection they have made has failed on the merits; the concerns raised about human rights and conscription in Ukraine can obviously be argued in this context). Unlike the Commission’s proposal, the Council decision explicitly confirms the possibility of applying for international protection instead.

One point about the evidence now necessary to show that temporary protection applicants comply with the new rules: the new extension decision refers to Ukrainian controls on exit (‘when leaving’ and ‘a legal departure’); it does not suggest that Member States’ authorities should be filtering Ukrainians as temporary protection applicants at the EU’s external borders.

Question 2: Does the Temporary Protection Directive give the Council the power to restrict its scope after four years of its activation?

Meltem: No, it does not. Neither Article 5 nor any other provision in the temporary protection Directive (TPD) grants any power to the Council to retroactively alter, narrow, or restrict the objective scope of who qualifies for that protection via a yearly implementing decision. Article 5 is invoked by the Commission in the Proposal to justify restricting the scope of the TPD’s application. However, if you look closely at the TPD, you will see Article 5 is intended to designate the specific categories of persons eligible for temporary protection at the very beginning, when there is a mass influx. It does not give the Council the power to dynamically designate or exclude different groups in subsequent yearly extensions. In my opinion, attempting to introduce new restrictions now is completely contrary to the TPD provisions. These new restrictions essentially introduce new exclusion grounds for temporary protection status. When looking at Article 28 of the Directive, which explicitly sets out the allowed exclusion grounds, it is clear that the new restrictions are also not permitted as additional exclusion grounds.

Update: This statutory concern remains unresolved in the adopted text. In adopting Council Implementing Decision (EU) 2026/1912, the Council explicitly relies on Articles 4(2) and 5(3), point (a) of the TPD as its legal basis. What I have previously argued still applies.

Steve: Again, a devil’s advocate might argue the opposite here – that this is not an issue of a new exclusion from temporary protection (which would definitely need an amendment to the parent Directive to be created), but rather a narrowing of those included by temporary protection. The scope of people included by the current iteration of temporary protection is defined not by the parent Directive, but by the 2022 decision to trigger it in response to the main Russian invasion of Ukraine, which has been amended (to extend its duration) several times already. The parent Directive is silent on the issue of whether the scope of who is covered by temporary protection can be altered (either to narrow it or to widen it) after temporary protection is triggered, but perhaps the earlier CJEU judgment in Kaduna – which accepted that Member States could narrow the scope of any ‘optional’ temporary protection they initially offered on top of the EU minimum if they chose – applies by analogy to EU-wide temporary protection, ie the EU can narrow the scope of temporary protection it initially offered, as long as the parent Directive’s test for terminating temporary protection is met for the specific group of people being removed from the scope of that protection as regards future applications. That test is:

...the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States' obligations regarding non-refoulement.

It might, of course, be argued that this test is not met for men of military age. In any event, the parent Directive’s guarantee that they can apply for international protection at any time, and the Return Directive’s guarantee that they cannot be refouled, have to be satisfied too, on an individual basis.

It might also be argued that since the parent Directive only sets minimum standards, it must remain open to Member States to grant temporary protection to military age men as an option, as long as they are fleeing Ukraine for the same reason as others seeking temporary protection (see the Kaduna judgment by analogy, as regards those who left Ukraine shortly before the main Russian invasion). This might be relevant in particular to Hungary, which has reportedly objected to this aspect of the proposal.

Question 3: What will happen to the family members of those who fall within the scope of temporary protection in line with Council Implementing Decision (EU) 2022/382 of 4 March 2022?  

Meltem: This raises a very messy legal question regarding family unity. Under the initial Council Implementing Decision (EU) 2022/382, family members of Ukrainian nationals, as well as those of third-country nationals holding refugee or equivalent protection status in Ukraine prior to the full-scale invasion, are explicitly included as a core category entitled to temporary protection alongside the principal applicant.  Article 15 of the Temporary Protection Directive sets out mandatory duties for Member States to reunite family members who were separated due to the circumstances of the mass influx. (cf. Milios’s contribution here) The new proposal creates a direct clash between Article 15 of the TPD and the proposed exclusion grounds. If a newly arriving, military-age man leaves Ukraine to join family members who have held temporary protection in the EU since 2022, his exclusion would directly undermine the right to family life and the obligations in the 2022 Decision and the Directive. Conversely, admitting him while excluding single men in identical circumstances introduces severe issues of differential treatment and discrimination.

Update: This tension between family unity obligations and the new eligibility conditionality remains unaddressed in the adopted text. Recital 15 of Council Implementing Decision (EU) 2026/1912 acknowledges that specific categories of eligible persons are determined “in compliance with Article 15 of [the TPD], where applicable”. Yet, this fleeting reference, in my opinion, does not give a clear answer to the question we posed above.

Steve: here I think the devil’s advocate has no good argument to make. Family members of those with temporary protection are entitled to temporary protection, according to the 2022 Decision, and family reunion, according to Article 15 of the parent Directive, unless the criteria for exclusion set out in that Directive (ie security risks and serious crimes, defined similarly to the exclusion clauses in the Refugee Convention) apply.

The wording of the new Council Decision, in my reading, excludes family members who have not complied with their military obligations from temporary protection under the 2022 Decision, but leaves open the prospect of them being eligible for family reunion, on the basis of the parent Directive. Although the final Council decision makes only an oblique reference to family reunion under the Directive, this is better than the failure to refer to it at all in the original proposal, and those who seek to rely on this possibility now have a specific provision in the text to point to. This is most likely to be relevant to men whose wives or partners have temporary protection in the EU (for partners, this is subject to the criteria of having a ‘stable relationship’, and that the host Member State treats partners in a ‘comparable’ way to married couples). As Jane Austen might have said, “It is a truth universally acknowledged, that a single man seeking protection from a Russian platoon, must be in want of a wife.”

Question 4: Is Recital 5 of the Proposal a mistake or a new interpretation of the Krasiliva case (C-753/23) by the Commission?

In the Krasiliva case (C-753/23), the Court of Justice of the European Union (CJEU) confirmed that displaced persons from Ukraine have a right to choose the Member State where they want to apply for temporary protection. However, the Court ruled that national authorities cannot declare a newcomer’s temporary protection registration and resident permit request inadmissible simply because they already applied for a permit in another Member State but have not received it. Interestingly, the Court left open the question whether a person who has received temporary protection status and a resident permit attached to this status in one Member State can apply and be granted temporary protection in another MS.

Recital 5 of the Commission Proposal notes “Given that a person can benefit from the rights attached to temporary protection in only one Member State at a time, to ensure that this is the case, and to avoid multiple registrations for temporary protection, Member States should reject residence permit requests made on the basis of Article 8(1) of Directive 2001/55/EC when it is apparent that the person concerned has already obtained a residence permit on that basis in another Member State and therefore is enjoying the rights attached to temporary protection therein, including social assistance. This would be coherent with the judgment of the Court of Justice of the European Union in case C-753/23 and in particular paragraph 30 thereof.”

Steve: To my mind, the Krasiliva judgment is ambiguous. The key para in the judgment says that it is “open to the authorities of a Member State to verify, in the course of examining” a temporary protection application, “whether those persons have already obtained a residence permit in another Member State”. This is not explicitly definitive either way. The important point here is the addition of the words in the Commission proposal: “and therefore is enjoying the rights attached to temporary protection therein, including social assistance”, which do not appear in the previous Council decision extending temporary protection. This suggests that if another Member State has granted temporary protection but has not done so correctly, ie does not extend the substantive rights set out in the parent Directive to beneficiaries in practice, another Member State is obliged to consider a temporary protection application from those persons. This would be consistent with CJEU case law on international protection (Ibrahim).

Meltem: I believe the Commission adopts a very restrictive reading of the Judgment by noting Member States should reject residence permit requests made on the basis of Article 8(1) of the Directive when it is apparent that the person concerned has already obtained a residence permit in another MS. However, as Steve pointed out, what happens if a person holds TP status in a Member State but is not enjoying the rights attached to temporary protection therein, including social assistance? Then can they apply for temporary protection in another Member State? I think the recital somehow supports this reading. Is this on purpose or a mistake we do not know.

Update: Whether the Commission’s original phrasing in draft Recital 5 was a deliberate attempt to safeguard Chapter III rights or merely a drafting oversight will remain unknown. If intentional, the Commission sought to ensure that holding a residence permit on paper in a first Member State would not bar an applicant from seeking protection elsewhere if that initial state failed to provide effective access to core rights, such as housing or social assistance. What is clear, however, is the Council’s intent in the final text. By deleting the “substantive enjoyment” qualification from Recital 5 and adding Recital 6, the Council rejected this flexible reading. Instead, it endorsed a very restrictive interpretation of Krasiliva (Case C-753/23) and wanted no multiple registrations, irrespective of the standard of protection actually delivered on the ground in the first Member State registered.

Conclusion

In conclusion, although the Commission's proposal to restrict the scope of temporary protection to help Ukrainian allies is understandable from a policy point of view, it raises many serious legal problems. For the reasons I have outlined, ranging from discrimination and ultra vires overreach to the risk of creating a dangerous legal gap for those whose asylum claims might be rejected, I argue that the Commission proposal should not be adopted as it is.

Meltem: While Council Implementing Decision (EU) 2026/1912 formally extends temporary protection until 4 March 2028, the Council did little to alter the substance of the Commission proposal or resolve the legal issues we raised. Apart from technical adjustments, most notably deleting the ‘substantive enjoyment’ clause from Recital 5 to enforce a bar on multiple registrations, the Council left the discriminatory elements intact while pushing the statutory boundaries of Articles 4 and 5 of the TPD. Moreover, the text left the friction with family-unity obligations under Article 15 TPD largely unaddressed.  

Steve: the final decision usefully refers both to the family reunion point and the prospects of those with military obligations applying for international protection instead. In the absence of these provisions, Member States might have tried to claim that family reunion or international protection claims by those with military obligations are not possible, but the explicit references in the preamble mean that such point-blank rejections by national authorities are not tenable. On the other hand, the Council’s final version of the Decision rejects the Commission’s apparent attempt to qualify the position on situations where a temporary protection applicant already has temporary protection in another Member State, and this is a questionable interpretation of the case law. In the face of reductions in support for temporary protection beneficiaries in some Member States, it is not impossible to imagine where severe living conditions induce a beneficiary to apply for temporary protection in another Member State. As with the case law on international protection (Ibrahim), a Charter right to do so should be recognised, at the very least.    

The Editorial Team

Dear readers,

We will be taking a short break for summer holidays. We will resume our regular publishing schedule in early September 2026.

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Picture credit: by Ákos Szabó on pexels.com.

Annelieke Mooij, Assistant Professor, Tilburg Law School

Photo: Facebook Clonee (Ireland) data centre

Photo credit: Thomas Nugent, via Wikimedia commons

1.    Introduction

The debate about sovereignty and specifically digital sovereignty is fierce. Member States, struggle to achieve digital sovereignty which impacts the continuity and safety of the digital services. To speed up the realization of the sovereign cloud the Commission has proposed a new act the Cloud and AI Development Act (CADA). The act covers three important facets: AI, Cloud and Data centres. This contribution is limited to the proposed rules regarding data centres and analyze their effectiveness. The proposed Regulation should not be considered a stand-alone Regulation but rather forms part of the European Union’s broader strategy to strengthen digital sovereignty. The EU aims to reduce dependence on foreign digital service providers and expand Europe’s cloud and data centre capacity. At its core, the proposed Regulation seeks to create the conditions necessary for a sovereign European cloud ecosystem. A system that can support economic growth, innovation, and public-sector resilience.

The pursuit of cloud sovereignty, however, depends on more than software, governance frameworks, or industrial policy. Cloud services, AI and other digital services ultimately rely on physical infrastructure. Data centres provide storage, computing power, and connectivity upon which cloud services and AI applications depend. Without sufficient data centre capacity, ambitions for European technological autonomy cannot be achieved. The Commission aims to stimulate the increase of the data centre capacity through the CADA. The CADA therefore introduces a regulatory framework aimed at accelerating the development of data centres.  The Commission aims for the EU capacity to have tripled by 2030, and by 2035, all critical infrastructure will be hosted in EU data centres. These objectives are ambitious but there are good reasons for the Commission to emphasize digital sovereignty.

2. Why Digital Sovereignty Is Necessary & Difficult

Before delving into the CADA, it is important to understand why digital sovereignty is important to the EU. Cloud computing provides its users with remote access to data storage, software, and computing resources hosted on external servers. By outsourcing storage and computing functions to the cloud, organizations can reduce the need to maintain their own IT infrastructure. Whilst benefiting from greater scalability and operational flexibility. Public authorities increasingly rely on cloud services for precisely these reasons.

At present, however, the European cloud market is heavily concentrated. American providers dominate the sector, with Amazon Web Services and Microsoft accounting for approximately 75% of the European market. The largest European provider holds only a marginal 2% share. This concentration creates a structural dependency on foreign companies for critical digital infrastructure. One of the principal objectives of CADA is therefore to reduce this dependency and strengthen Europe’s technological autonomy.

The strategic rationale for reducing dependence on non-European providers extends beyond concerns about market concentration. Control over cloud infrastructure increasingly translates into geopolitical influence. A recent example is that of the latest AI-model created by Anthropic. The US government prohibited Anthropic from releasing its newest and most powerful model to its European customers. The official reason was due to considered possibilities of jailbreaks. The possibility of this happening was strongly denied by Anthropic. The EU Commission, however, stressed the possible negative impact on EU cybersecurity and cyberdefense.  It has been illustrative of how the US can cut-off new technologies to the EU, without serious repercussions. These incidents have not remained limited to simply limiting foreign accessibility but also to demonstrate power to individuals and institutions. Illustrative of this is the disruption of e-mail communications involving the International Criminal Court. The ICC’s email was cut-off after President Trump disagreed with actions from its main prosecutor. The case illustrated how political pressure exerted through private technology providers, without court permission, may affect the continuity of essential digital services. This dependence can be dangerous for Europe as it includes technology that is necessary for military purposes.

To achieve the desired increased EU cloud and AI capacity, physical infrastructure (or hardware) is necessary. Cloud and AI systems require data centres to operate on. The CADA therefore introduces a framework to create the necessary infrastructure.

3. The CADA’s rules on achieving data centre capacity.  

3.1. Specific Objectives

The CADA seeks to establish what the Commission describes as a coordinated and integrated ecosystem approach to cloud computing and artificial intelligence. According to the Commission, divergent national approaches to data centre permitting barriers to the efficient functioning of the internal market and hinder the development of a competitive European cloud ecosystem.

Against this background, the Regulation aims to create the conditions necessary for the large-scale deployment of cloud and AI infrastructure throughout the Union. In addition to reducing regulatory fragmentation, the proposal seeks to strengthen technological sovereignty, improve operational resilience, and support public-order objectives. The Commission further presents the Regulation as an instrument for promoting innovation and sustainability in Europe's digital infrastructure.

Regarding data centres specifically, the proposal seeks to address perceived shortages in computing and storage capacity through a combination of harmonisation measures and accelerated deployment procedures. This should lead to a specific result namely; triple the data centre capacity by 2030 and have sufficient EU data centre capacity for critical infrastructure by 2035.

3.2 Role of the Commission

The responsibility for achieving the operational objectives established by the CADA rests primarily with the European Commission. To achieve its goals, the proposal relies heavily on existing and future funding programmes intended to stimulate the development of cloud and AI technologies. These programmes seek, among other things, to improve the efficiency with which computing resources are used.

Particular emphasis is placed on technological innovation. High Performance Computing (HPC), for example, may increase the amount of computing output generated from a given level of infrastructure. More efficient use of computing resources can reduce the relative amount of storage and processing capacity required to achieve a particular outcome. Nevertheless, such efficiency gains do not eliminate the need for physical infrastructure. High-performance computing still depends on data centres and therefore remains subject to the same underlying constraints relating to energy, water, and spatial planning.

The effectiveness of this strategy consequently depends largely on the success of research and innovation projects supported through European funding programmes. There is ample reason to believe these strategies can be successful, economic literature has long recognised that research subsidies can stimulate innovation by reducing investment costs and encouraging experimentation. The chance of success, however, depends on the knowledge of the subsidy provider. In the past EU subsidies have proven a successful strategy. It is to be expected that the aim of development through subsidies will be successful again.

3.3. Data centre Acceleration Zones

To facilitate the expansion of data centre capacity, the CADA introduces so-called Data Centre Acceleration Areas (article 10). Each Member State is required to designate at least one such area for the accelerated development of data centre infrastructure, within six months of the Regulation entering into force.

When identifying acceleration areas, Member States must consider existing and future infrastructure capacity, energy availability, and broader sustainability considerations. The proposal further requires national authorities responsible for spatial planning to consider future data centre development and the necessary supporting infrastructure in those zones.

A developer wishing to develop a data centre in such an acceleration zone, will have the right to be assisted by a single point of information (article 11). This single point of information can assist the developer by sharing and coordinating the necessary permits and environmental and habitat assessments. The latter will be a sped-up procedure in accordance with Regulation 2026/XXXX on speeding-up environmental assessments. This Regulation was proposed in December 2025 with the aim to simplify environmental assessments. These rules aim to ensure that new projects have completed the permitting procedures within a year. The latter is the maximum that permitting procedures are allowed to last.

Taken together, these measures are intended to reduce administrative burdens and increase legal certainty for developers. The underlying assumption is that lengthy and fragmented permitting procedures constitute a significant obstacle to data centre deployment. To the extent that regulatory complexity delays investment, the proposed measures may indeed facilitate development. It is, however, questionable whether regulatory procedures are the primary challenge. The extent to which these objectives can be achieved in practice is, however, less clear. The realization of data centres come with significant challenges. When in operation, data centres become increasingly hot. With temperatures rising to 70 degrees in an hour. To continue their operations data centres need to cool. The cooling process requires high amounts of energy and clean water. E.g. data centres in the Netherlands constituted for approximately 5% of electricity demand in 2024. Recently a data centre by Microsoft made headlines that it uses 1% of the total national energy in the Netherlands. This whilst on the other hand there are significant shortages in energy supply for new housing and net congestion is increasing. Thereby creating serious debates on whether power should be diverted to data centres. On an EU level the targets for energy consumption are not yet met. The reduction target is approximately 18% away from its 2030 target. In 2024 the EU was 17% from renewable energy targets for 2030. In 2024 data centres consumed roughly 3% of the EU’s energy. Tripling this number and increasing it further till there is sufficient capacity for digital sovereignty creates a significant challenge.

These concerns are not limited to energy, the Netherlands is estimated to have a drinking water shortage by 2030. This whilst the data centres require approximately 3.7 million tonnes of drinking water per year, roughly 0.3% of Dutch tap water consumption, in the EU it is estimated to total 5.747.764.000 (nearly 6 billion liters). The CADA does not provide solutions to these underlying constraints. Instead, it requires Member States to create data centre acceleration zones and take infrastructure into account when designating these zones. Within these zones permitting procedures must be conducted within 12 months. While this may improve planning and coordination, it does not generate additional electricity capacity, alleviate network congestion, or increase the availability of water resources. The permits may become a hollow factor. A good example of the potential irony is that of the data centre in the Netherlands. The data centre had the required planning permits but were put on a waiting list for their energy connection.

The requirements created by the CADA may seem with a large margin of discretion as it uses language such as “take into consideration”. This language does not exert pressure on Member States. The CADA, however, also includes the earlier mentioned hard objective to triple the data centre capacity by 2030. Here lies another difficulty with the proposed framework. The CADA does not introduce a division key for how much capacity must be realized by each individual Member State. There are, however, big gaps between Member States in the current capacity.

Hungary for example only has 7.3MW of total capacity whereas Germany has 2.6GW of IT power. Arguably the capacity can be divided equally over all Member States, using the GDP as percentage divider. GDP is an indication of how much IT power is consumed in the economy. Generally, the higher the GDP the higher the IT consumption is. There is, however, little data on the demand for critical infrastructure in the EU. This is likely to change as article 15 of the CADA charges the EU Commission with obtaining that data. From an environmental perspective it is, however, ineffective to simply divide along GDP. Countries with cold climates and large coastal areas can build new more efficient data centres as the can use ocean water or outside air to cool. A submerged data centre on the coast is more sustainable than a data centre in a desert. In theory, the incentive to build data centre capacity by these countries is profit. Countries with favorable circumstances can build capacity cheaper than others and sell the capacity for profit. This theory of absolute advantage seems undermined by the next section of the CADA; the introduction of the European Cloud Federation.

4. The European Cloud Federation

In addition to measures aimed at expanding data centre capacity, in articles 34 and 35 the CADA introduces the proposed EuroCloud Federation. Participation in the Federation is voluntary and open to EU institutions and public-sector bodies. The purpose of the Federation is to facilitate the sharing of public cloud and data centre resources among participating members.

The underlying rationale is straightforward. Public authorities do not always utilize their available computing resources at full capacity. By enabling participating organisations to share infrastructure, the Federation seeks to improve the utilisation of existing resources and reduce unnecessary duplication of investments. In principle, such an approach may contribute to a more efficient use of public infrastructure.

To facilitate this objective, the proposal establishes a framework governing access to and sharing of infrastructure within the Federation. A notable feature of this framework is the limitation placed on financial compensation. Under Article 35(5), members providing infrastructure may recover their costs but are not permitted to generate profit from sharing their capacity with other participants.

From the perspective of short-term efficiency, this approach is understandable. Allowing access at cost price reduces barriers for participating entities and may encourage greater use of available infrastructure. The arrangement may therefore improve the allocation of existing capacity within the public sector.

The longer-term effects are less clear. The development of additional infrastructure requires significant investment and involves financial and operational risks. Where providers are unable to obtain any return beyond cost recovery, but cost recovery is not guaranteed, the incentive to create surplus capacity that can later be shared within the Federation may be reduced. Public entities may conclude that it is more attractive to rely on the capacity of other participants than to invest in additional infrastructure themselves.

5. Conclusion: a failed attempt?

The aim of the CADA is to increase the total EU data centre capacity. The CADA, however, does not create a division key. This is a fundamental gap within the regulation, it is too easy to state that all Member States should triple their data centre capacity equally. At present there are high differences in capacity between the different Member States.

The proposed Cloud and AI Development Act represents an ambitious attempt to strengthen European digital sovereignty through the expansion of cloud and AI infrastructure. Central to this ambition is the objective of significantly increasing data centre capacity across the European Union. To facilitate this development, the Regulation requires Member States to designate acceleration areas, develop national cloud and AI strategies, and participate in a broader framework intended to support the growth of sovereign digital infrastructure.

The proposal therefore sends a clear political signal. Data centres are no longer regarded as purely commercial infrastructure but as strategic assets that are essential for economic competitiveness, public administration, and technological autonomy. In that respect, the CADA forms part of a broader shift in European policy towards reducing strategic dependencies in critical digital technologies. Nevertheless, the CADA does not solve issues regarding natural resources. The introduction of the EU Cloud Federation furthermore has the potential to undermine a sustainable and economically efficient capacity division.  

Joanna Demopoulou holds a PhD in International Affairs and is a former Executive in Residence at the Geneva Centre for Security Policy (GCSP). Her research examines the legal and institutional architecture of public authority and governance, focusing on how law structures, distributes, and constrains public authority across European and international institutions.

Photo: Laura Kövesi, by AGERPRES, cropped by Ionutzmovie, via Wikimedia Commons

EU law can examine almost any exercise of public power. Where it struggles is with the decision, taken a step earlier, about whether that power may exist at all. The Kövesi litigation is where the gap becomes visible.

On 24 June 2026 the Administrative Plenum of the Greek Court of Cassation dismissed, as inadmissible, an application brought by the European Chief Prosecutor, Laura Kövesi. She had challenged a Greek decision renewing three European Delegated Prosecutors (EDPs) for two years, where the College of the European Public Prosecutor's Office had wanted five. The vote was seventy-two to ten. Reported as news, the case looks like a routine standing problem: a supranational official has no locus, under domestic law, to contest a Member State's handling of its own judicial officers, and national procedure ran its course. That reading is not wrong. It is just incomplete.

What the dismissal actually protects is worth stating plainly. European prosecutorial independence was shielded here not according to what it does, but according to who signed the act that curtailed it. Nobody designed things to work this way, which is rather the trouble.

The case in brief

The College favoured a five-year renewal for three prosecutors in the Greek national section. The Supreme Judicial Council, the organ of national judicial self-government, granted two. Kövesi sought annulment. The Plenum found she lacked standing. Under Greek law on the service status of judicial officers, recourse lies only with the affected officers themselves, and only where the underlying Council decision carried a dissent of at least two members. This renewal had been unanimous.

The consequence is what matters. The problem was not that the wrong applicant had turned up. On these facts, no applicant could have brought a challenge at all. A minority of ten judges would have referred the underlying question, who fixes the duration of an EDP's mandate, to Luxembourg; the majority made no reference. And the forum matters: this was the Administrative Plenum in closed session, the Court acting in its self-governing rather than its adjudicative capacity. A national body, applying national rules, set a term that would bound the independence of a Union prosecutor.

EU law reviews the exercise of power well

The EPPO Regulation shows how far Union law has come in policing how European Union power is used. Operational acts, meaning the procedural steps of an investigation that can affect third parties, are reviewable under Article 42(1). Administrative acts of the Office fall to the Court of Justice under Article 42(8). And that Court has read these provisions generously. In EPPO v I.R.O. and F.J.L.R. (C-292/23), decided by the Grand Chamber on 8 April 2025 on a reference from a Spanish court, it insisted on effective review even of a witness summons issued by a European Delegated Prosecutor, looking past the formal label of the act to its effect on a legal position. The Regulation itself reveals an asymmetry: Article 42(8) expressly provides review for decisions dismissing EDPs under Article 17(3), but says nothing about national decisions shortening the office on which the Union mandate depends. Where European Union power is exercised, in short, a court can generally be found to look at it.

The Greek renewal decision is not that kind of act. It exercises no Union power and administers no Union office. What it does is change the duration of the national judicial status a person must hold in order to serve as an EDP at all (Recitals 32–33). Article 17, which entrusts appointment and dismissal to the College, treats that status as a standing precondition of the Union mandate, not as the thing the mandate acts upon. The act does not use the prosecutor's independence and it does not formally end it; it determines whether that independence can go on being held at all. What is being decided, in other words, is a precondition of the Union mandate rather than anything the mandate does, and preconditions of that sort are where EU judicial review is thinnest.

Why it falls between the regimes

The Regulation's review architecture sorts acts along two axes: institutional origin (an act of the EPPO, or of a Member State) and character (operational or administrative). A decision of the kind at issue here fits none of the resulting boxes. Because it is national in origin, the national track applies and Article 42 does not. Because it is neither operational nor administrative in the Regulation's sense, no Union regime claims it either. It is left to ordinary national service-status litigation.

And in Greece that litigation led nowhere. The unanimity bar, anchored in Article 90(3) of the Greek Constitution (whose compatibility with the right to effective judicial protection is itself already contested), meant that no review was available to anyone. The independence of a Union prosecutor was capped by a national hand, and no court, Greek or European, was in a position to examine the cap.

The obvious objection

The natural response is that this is simply a national act, and that dressing it up as anything else misreads the bargain on which the EPPO was built. The Office was designed to stay embedded in national structures. Article 42 was written for the Office's operational output, not for Member States' decisions about their own judges.

Take that objection at its strongest and it still runs into the facts. To succeed, it has to treat the decision's effect on a Union status as carrying no independent legal weight, the two-year cap as, in Union terms, simply invisible. But the College's five-year act and the Council's two-year act, pulling in opposite directions over the same office, put exactly that in doubt. If national tenure can quietly cap the Union mandate, a formally national act is shaping a condition of Union authority with no Union-level review; if it cannot, the act was never purely national in effect. Either way the binary the architecture relies on does not hold, and incorporation of the national status into the Union scheme, even if one grants it, says nothing about who may review a decision that shortens the incorporated condition.

The argument does not turn on how Kövesi ends

It is worth being precise about what this is not. There is a substantial literature on judicial review in composite or integrated procedures, where national and Union authorities each contribute to a single act and review fractures because each court sees only its own segment. The Greek renewal is a different animal: not a national input into a composite Union act, but a self-standing national decision that governs a precondition the Union scheme takes as given. The composite-procedures problem is who reviews which part of a joint act. The problem here is that the review architecture offers no settled framework for a decision about whether the Union mandate can subsist at all.

None of this denies that EU law has built review doctrines in adjacent terrain. Article 19(1) TEU, in the line running from the Portuguese Judges case, obliges Member States to uphold the independence of national courts that may rule on Union law. But that doctrine asks whether independence is protected; it does not supply a route for reviewing a national decision that fixes the tenure on which a Union mandate depends. The guarantee runs to independence as a value, not to the reviewability of the act that conditions the office.

Suppose the Court of Justice were eventually to hold, here or in a later case, that a renewal of this kind is purely national and beyond Union reach. That would not defeat the point; it would illustrate it. The claim is not that such decisions must become Union acts and be reviewed in Luxembourg. It is narrower and more awkward: EU law currently reads such decisions through the origin of the act, so that their bearing on Union power does no independent work. A ruling that an act of this kind is 'purely national' would be the clearest demonstration of that reflex. The thesis is about the criterion of review, not the disposition of this dispute, which is why it survives whichever way the dispute is resolved.

Beyond the EPPO

European Union constitutional law has grown confident at reviewing how public power is exercised. Whether it has built anything equally coherent for reviewing the legal conditions on which that power rests is far less clear, and those conditions multiply as Union governance turns hybrid, its authorities European but their underpinnings national.

So Kövesi is not really a story about three prosecutors in Athens. It is the point at which the standard question of judicial review, who exercised this power, starts to miss something. EU law has developed an answer to the first question. It has not yet developed one to the second, who set the conditions under which the power could be exercised at all.

*A note on sources. At the time of writing the full reasoning of the Administrative Plenum was not publicly available. This post relies on the EPPO Regulation (Council Regulation (EU) 2017/1939) and CJEU case law as primary materials, and on contemporaneous reporting for the Greek proceedings. The characterisation of the majority and minority positions should be checked against the official text once it is released.

Lorna Woods, Professor Emerita, University of Essex

Photo credit: Océanos y dados, via Wikimedia commons

Introduction

This case deals with one of the perennial questions that has faced legal regimes which recognise special treatment for journalism and new media since the advent of “new media”, that is, how far are such exceptions and preferential treatment extended? While a question for individual States to balance the freedom of expression concerns with other rights and societal interests, for the EU there is also the fact that Member States seemingly take very different approaches.  The Swedish rules, the subject of this case, provide broad protections and exemptions from data protection rules; but are they compatible with the GDPR?

The Facts

The case originated when ND, who had been convicted a criminal offence, sought to have details of that offence removed from the database provided, for a fee, by Legal Newsdesk Sweden.  The database allows individuals and businesses to search for those who have been subject to criminal prosecution before a Swedish court. ND’s request for erasure of the data was not met and ND sought damages for failure to comply with data protection rules. Legal Newsdesk Sweden relied on a Swedish law exempting journalism from the GDPR, and the fact that the relevant authority had granted Legal Newsdesk Sweden a certificate confirming the protection applied (utgivningsbevis). Further this meant that the only remedies available to ND against Legal Newsdesk Sweden would be criminal prosecution or civil claims for defamation.

The Questions

The case revolved around the Swedish law’s compatibility with the GDPR and specifically whether the rules fell within the space created by Article 85. Article 85 provides:

(1) Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.

(2) For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.

The national court referred three questions around the scope of Article 85(1) and (2) and their relationship to one another:

Is the list in Article 85(2) exhaustive or does Article 85(1) allow member States to adopt legislative measures in relation to further categories of activity?

Does the Swedish approach of limiting the remedies available to a person to criminal proceedings or defamation find an appropriate balance between freedom of expression and data protection?

Can the making available of information based on public documents in a database for a fee  without any processing or editing constitute processing of personal data for the purposes identified in Article 85(2) (specifically journalistic purposes)?

Judgment

As regards the first question, the Court held that the right to derogation from data protection rules applies only in relation to the categories enumerated in Article 85(2). The Court noted that Article 85(1) establishes a general rule about reconciliation of freedom of expression and GDPR requirements, but Article 85(2) operationalises it.  Although the term "including" confirms that journalistic, academic, artistic, and literary processing are only part of that reconciliation, paragraph 1 in itself does not grant independent exemption authority; that is the role of Article 85(2). The requirement to provide exceptions only applies to those exceptions listed. Exceptions are interpreted narrowly, and taking this approach provides a “fair balance”, as required by the principle of proportionality, between Charter rights.

As regards the second question, Article 85(2) lists the rights that may be limited, and that list does not include the rights to remedies provided for in the GDPR.  While there is Member State procedural autonomy, the GDPR confers directly effective rights and they can only be limited by conditions found in the GDPR. This means limitations such as those found in the Swedish law are not compatible with the GDPR.

The third question concerned whether the provision of the database constituted processing of personal data for journalistic purposes.  The Court confirmed, first, that the making available of documents to the public constituted processing. That exemptions were to be provided if necessary to provide the balance specified in Article 85(1). Moreover, the definition of journalism from Article 9 Directive 95/46 was in principle transposable to inform the concept of journalistic purposes, which was not otherwise defined, for the GDPR.  The Court referred to the definition in Satskunnan Markkinaporsii and Satamedia (Case C-73/07):

“disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them”.

The Court also referred to Recital 153 GDPR which emphasises that the term should be interpreted broadly. The Court, however, continued to say it

“cannot cover all forms of expression but must be understood in a way that takes into account what differentiates, from the point of view of the manner in which they are created, journalistic expression from other forms of expression” [para 64]

The Court then referred to the case law of the European Court of Human Rights on protection of journalism within freedom of expression (Article 10 ECHR). From this body of jurisprudence, the CJEU identified three aspects:

• carrying out the role of editing or adapting material, or publishing according to an editorial line or policy;

• verification of factual claims for reliability; and

• compliance with journalistic ethics.

The Court suggested that a service that simply makes criminal convictions available to anyone willing to pay, without editorial review or processing, is unlikely to satisfy those requirements.  The Court did emphasise that when the protections apply, they apply also to prior research as to publication.  So convictions can be useful raw material for journalists, but the processing is for  journalistic purposes only if those documents are used exclusively for such activity.

Commentary

This judgment is a strong defence of data protection and the coherence of the GDPR regime.  The main point of interest in this judgment is the Court’s approach to journalistic purposes. Before discussing that, it is also worth noting that in the Court’s approach to the relationship between Article 85(1) and 85(2), it has taken an approach with favours maximum harmonisation rather than allowing too much space for Member States to go their separate ways.  This re-emphasises the supremacy of EU law, and the narrowness of exceptions thereto, even when States’ individual constitutions are in issue. It is arguably a narrow interpretation of Article 85.  There is a question of how the balance that the Court has struck in Article 85(1) might impact other forms of data processing that impact the public information sphere – what for example, about search engines (already the subject of some jurisprudence: Case C-136/17 GC et al and Case C-460/20 TU and RE v Google), social media and – increasingly – chatbots?

Rights are a theme throughout this judgment but it is interesting to note that while the rights which the Swedish rules sought to limit were those relating to remedies, the Court did not rely on the right to a remedy as a fundamental right to support its argument. Rather, it relied on the fact that these were directly effective rights derived from the GDPR. The concern was the priority of EU legislative objectives over national concerns.

The main significance is the establishment of a three stage test for “journalistic purposes” which had hitherto been undefined.  The previous position had been established in Satamedia, and further elaborated in Google Spain (Case C-131/12) and Buivids (Case C-345/17), all of which seemed to be orientated towards elaborating the idea of informing the public which is the base of the definition in Satamedia.  It is arguable, that Legal Newsdesk Sweden’s activities might not fall within the scope of this definition anyway – though the position was certainly unclear. In identifying further criteria, however, the Court has provided more clarity and likely narrowed the scope of the journalistic purposes exception.  It is interesting to note that the Court has taken cases about the level or protection awarded to journalists within the ECHR jurisprudence to identify qualifying criteria for being a journalist (of carrying out journalistic purposes) in the GDPR context- a shift from assessing how to identifying who. Whether this shift is significant in practical terms is rather uncertain – both Courts seem to be asking if the person is behaving according to relevant standards to gain the benefits of extra protection (and neither require institutional affiliation as a precondition of receiving the status).

While the focus in the case was just about resale of public information without any amendment, contextualisation or commentary (and possibly data brokerage generally including digital archives, research platforms, aggregators, and people-search services), the implications go further and impact “citizen journalists”, bloggers, gossip sites and other public communicators who might have assumed that they would benefit from protections, even though they might also not have bothered with fact checking and ethical considerations around news-gathering and publication. While they might have argued that they contributed to informing society, now there are more specific and arguably less vague requirements to satisfy – those around verification and ethics. Although this is a narrowing of their protections, it does not mean such speakers are off air – it means that they have to pay more attention to how they acquire and retell stories.  It is also important to note that the Court has not as a point of principle excluded private actors (rather than those earning a living from journalist) from the scope of state protections, and nor does the fact that such activities are done for money affect the assessment of whether they are done for journalistic purposes or not. And, of course, traditional journalism and media are not affected by this ruling.

One final point is also clear: the Swedish system will require significant overhaul if it is to comply with GDPR requirements.

By Marzia Genovese, Postdoctoral Lecturer and Researcher in Public Law at the European Documentation and Research Centre of the University of Pau (France).

Photo: Bulgaria Palace of Justice; photo credit Bim in Garten via Wikimedia Commons

      I.         Introduction

In K.M.H. v Obshtina Stara Zagora (Shipov, C-43/24), the Grand Chamber of the Court of Justice of the European Union (ECJ) held that Article 21 TFEU and Article 4(3) of Directive 2004/38, read in the light of Article 7 of the Charter of Fundamental Rights of the EU, preclude national legislation that does not permit a transgender Union citizen to amend certain data recorded in civil-status registers. The judgment builds upon the Court’s recent decision in Mirin and forms part of a broader line of case law concerning the relationship between free movement rights, personal status and gender identity.

The decision will likely be welcomed as a further step in the protection of transgender Union citizens exercising their free movement rights, yet the lines of reasoning adopted by both the Court and the Advocate General (AG) raise a number of conceptual and constitutional questions that remain insufficiently explored.

This contribution argues that Shipov marks a significant development in the evolution of Article 21 TFEU. Unlike Mirin, the case did not involve the recognition of a legal status previously acquired in another Member State. Instead, the Court used Article 21 TFEU to impose a positive obligation affecting the organisation of national civil-status law itself. At the same time, it does so through reasoning that leaves several conceptual and constitutional questions unresolved. In particular, the Court employs notions such as sex, gender and gender identity, without clearly identifying the legal category that Member States are required to recognise or modify. Additionally, the Court’s reasoning raises broader questions regarding the practical scope of Member State autonomy in matters of civil status.

The discussion proceeds in four steps. It first examines the conceptual uncertainty underlying the judgment. It then considers the shift from mutual recognition to self-standing positive obligations under Article 21 TFEU, before analysing the limitations of the AG’s reasoning as well. Finally, it reflects on the implications of Shipov for the relationship between Union citizenship and national competence in matters of civil status.

II. Conceptual ambiguity: what exactly must be changed?

One of the most striking features of Shipov is the conceptual ambiguity underlying the Court’s judgment. Throughout the proceedings, a number of distinct notions appear interchangeably, such as sex, gender and gender identity. Yet neither the Court nor the Advocate General clearly explain the legal relationship between these concepts or identify with precision which of them forms the object of the obligation imposed on Member States.

Such an obligation necessarily presupposes the identification of the legal category to be modified. Is EU law requiring the recognition of a person’s gender identity, the amendment of legal gender or the modification of civil-status records relating to sex? The judgment offers no clear answer.

The ambiguity culminates in the operative part of the judgment, where the Court refers to “data relating to gender, such as sex” (paras 36 and 56). This formulation is difficult to reconcile with a coherent conceptual framework. If sex and gender are distinct categories, as the Court itself appears to assume throughout the proceedings and it is also scientifically established, the judgment fails to explain why they can be treated as interchangeable for the purposes of civil-status registration. Conversely, if the two concepts are understood as functionally equivalent, the Court never justifies the use of separate terminology throughout its reasoning and moves fluidly between references to sex, gender identity and personal appearance without clarifying the legal significance of each concept.

This ambiguity is not merely semantic. It has direct implications for legal certainty. Member States remain, in principle, competent in matters of civil status. If EU law nevertheless requires them to modify certain entries contained in civil-status records, they must be able to determine with reasonable clarity and certainty which legal category is affected and what precisely must be recognised. By treating distinct dimensions as largely interchangeable, the Court risks obscuring the precise basis of the obligation imposed on Member States.

Moreover, the Court’s treatment of intersex and transgender persons illustrates the conceptual difficulties underlying the judgment (para 22). In assessing the Bulgarian legal framework, the Court appears to rely on the fact that national law permits the amendment of civil-status records in certain situations involving intersex persons whilst excluding such amendments for transgender persons. Yet the comparability of those situations is largely assumed rather than demonstrated.

This omission is significant. Intersex variations and transgender identity raise distinct legal and factual questions. The former concern biological conditions that may affect the classification of sex at the time of birth and, consequently, the accuracy of the original civil-status registration. The latter concern the recognition of a gender identity emerging after birth and whose legal implications are conceptually different from the correction of an allegedly inaccurate birth record. The Court does not explain why these situations should be treated as comparable for the purposes of civil-status registration, nor why legal solutions developed in one context should necessarily apply in the other.

Whether the situations ought ultimately to be treated alike is therefore not the central issue. The difficulty lies in the absence of a clear comparability analysis. By moving between different categories without defining the legal relevance of each of them, the judgment further reinforces the conceptual ambiguity already present elsewhere in its reasoning.

This difficulty is compounded by a second and arguably more fundamental question: does Shipov fit within the logic of the Court’s earlier citizenship case law at all?

III. From recognition to self-standing positive obligations

The Court presents Shipov as part of a broader line of case law concerning the exercise of free movement rights by Union citizens. Yet a closer examination reveals that the judgment departs in a significant respect from the logic underlying the Court’s earlier decisions on civil status.

Cases such as Grunkin-Paul, Coman and, more recently, Mirin were all built around a common premise: a legal status had already been lawfully acquired in one Member State and another Member State refused to recognise it. The obstacle to free movement arose from the coexistence of conflicting legal situations within the Union. In those circumstances, the Court relied on Article 21 TFEU to prevent Union citizens from suffering disadvantages resulting from the exercise of their right to move and reside in another Member State.

In Mirin, for example, the applicant had obtained legal recognition of his gender identity in the United Kingdom and sought recognition of that status in Romania. The Court’s intervention therefore remained rooted in a logic of mutual recognition. Romania was not required to create a new legal status; it was required to recognise one already validly established elsewhere in the Union.

Shipov presents a fundamentally different situation. The applicant had not obtained legal recognition of her gender identity in Italy or in any other Member State. No foreign administrative act, judicial decision or civil-status record existed that could serve as the object of recognition. The case therefore lacked the transnational legal element that had justified the Court’s intervention in previous cases. This distinction is not merely factual. It alters the very nature of the obligation imposed by EU law.

In the absence of any status acquired elsewhere, Bulgaria was not asked to recognise an existing legal situation. Rather, it was required to provide a mechanism through which a new legal status could be established under Bulgarian law itself. Article 21 TFEU thus ceases to operate as a principle of recognition and becomes a source of self-standing positive obligations affecting the organisation of national civil-status systems.

The significance of this shift should not be underestimated. Mutual recognition has traditionally allowed the Court to balance free movement rights with Member State autonomy. Whilst Member States remained free to determine the substantive conditions governing civil status within their own legal systems, they could not disregard legal situations lawfully established elsewhere. This logic preserved a degree of constitutional pluralism by distinguishing between the creation of legal status and its recognition.

In Shipov, however, that distinction becomes increasingly difficult to maintain. Once Article 21 TFEU is capable of generating obligations independently of any foreign status requiring recognition, the Court’s review is no longer confined to ensuring the continuity of legal situations across borders. It extends to the substantive content of national rules governing civil status. The competence formally remains national, but the outcome is increasingly shaped by EU law.

IV. The Advocate General’s ‘functional’ solution and its limits

If Shipov cannot be really explained through the logic of mutual recognition, a different justification is required. The AG sought to provide one by focusing on the functional role of identity documents in facilitating the exercise of free movement rights. Since identity documents play a crucial role in enabling Union citizens to move and reside freely within the Union, the Member State of nationality could not, in his view, maintain a system that prevented such documents from reflecting a person's lived gender identity.

The most problematic aspect of the Opinion, however, lies elsewhere. In paragraph 94, the AG expressly states that the original indication of the applicant’s sex should not be regarded as erroneous and should not be treated as a mistake requiring rectification. Two paragraphs later, moreover, he recalls the ECtHR’s recognition of the “historical nature” of birth records and of the continuing relevance of the sex assigned at birth for establishing facts predating gender reassignment. Yet the solution advocated by the Opinion ultimately requires the creation of a legal mechanism through which the same birth certificates may be amended in order to reflect a subsequently recognised gender identity.

The resulting tension is difficult to ignore. If the original registration was accurate and birth certificates serve, at least in part, a historical function, the Opinion never adequately explains why EU law nevertheless requires their amendment.

This tension is reinforced by the AG’s own discussion of Article 3(2) of Regulation 2025/1208. There, he acknowledges that EU law does not require Member States to include a reference to sex or gender on national identity cards and permits them to omit such information altogether, unlike the International Civil Aviation Organisation (ICAO) standards applicable to passports and other travel documents (all Member States, but not the EU, are parties to the Convention establishing the ICAO). If the objective pursued is the removal of obstacles to free movement, the necessity of amending birth certificates becomes considerably less obvious. The Opinion does not explain why that objective cannot be achieved through less intrusive means. As paragraph 82 of the Opinion makes clear, the perceived necessity of amending the birth certificate stems largely from the fact that Bulgarian identity documents are based upon that record, yet this approach risks extending the reach of Article 21 TFEU into matters that traditionally fall within Member State competence.

The AG’s functional approach thus succeeds in identifying a practical difficulty faced by the applicant, but it never convincingly explains why a birth certificate whose original entries are acknowledged to be accurate must nevertheless be altered in order to comply with EU law.

V. EU citizenship and national autonomy in matters of civil status

The preceding discussion ultimately points towards a broader constitutional issue. If Article 21 TFEU (which sets out EU citizens’ rights to move and reside freely in the EU) can require the amendment of civil-status records in the absence of any foreign status requiring recognition, what remains of Member State autonomy in matters of civil status?

The Court has consistently recognised that matters such as civil status, family status, names and personal identity fall, in principle, within the competence of the Member States (e.g., Runevič-Vardyn). At the same time, however, it has repeatedly held that those competences must be exercised consistently with EU law whenever the exercise of free movement rights is affected. The tension between these two propositions lies at the heart of Shipov.

Here, the Court expressly acknowledges that the issuing of identity documents falls within the competence of the Member State of nationality (para 47), yet it immediately adds that such documents serve to enable the exercise of the rights conferred by Article 21 TFEU. Once that connection is established, national rules governing civil-status registration become subject to review in light of both free movement and the fundamental rights guaranteed by the Charter, such as Article 7 (respect for private and family life).

This dynamic is further illustrated by the ECJ’s treatment of the Bulgarian Constitutional Court’s reasoning. The latter had previously interpreted the concept of sex contained in the Bulgarian Constitution as referring exclusively to biological sex and justified its interpretative decision in light of broader moral and religious rules and principles “prevailing over the interests of transgender persons” (paras 21 and 46). The ECJ rejected those arguments as potential justifications for the restriction of free movement and ultimately reaffirmed that neither the Member State’s competence in matters of civil status nor moral and religious considerations could justify the obstacles encountered by the applicant (paras 47-48). This logic culminates in paragraph 60 of the judgment, where the ECJ reiterates that rules of national law, even of constitutional rank, cannot undermine the effectiveness of EU law.

From the perspective of EU law, this result is hardly surprising. The principle of primacy would be significantly weakened if Member States could rely upon domestic constitutional concepts to avoid obligations flowing from Union law. Nevertheless, Shipov illustrates how the progressive expansion of Article 21 TFEU may affect the practical scope of Member State autonomy in areas that formally remain within national competence. This point is particularly significant when considered alongside the preceding sections.

To raise this concern is not to suggest that constitutional autonomy should operate as a shield against Union law. Nor is it to deny the legitimacy of protecting Union citizens against discrimination and/or unjustified obstacles to free movement. However, the broader the concept of an obstacle to free movement becomes, the greater the potential reach of EU law into areas that the Treaties continue formally to reserve to the Member States.

In this respect, Shipov may ultimately prove significant not only for legal gender recognition, but also for the constitutional development of Union citizenship itself. The judgment suggests that once a matter can be connected, even indirectly, to the exercise of free movement rights, the scope for maintaining distinct national approaches becomes increasingly narrow. Whether that development represents a natural consequence of Union citizenship or a more profound transformation of the relationship between EU law and national competences remains open to debate.

VI. Conclusion

Shipov is likely to be remembered as an important step in the Court’s case law on the rights of transgender Union citizens, yet its significance extends beyond the specific context of legal gender recognition.

The judgment suffers from a degree of conceptual ambiguity that is difficult to ignore. Throughout its reasoning, the Court moves between references to sex, gender and gender identity without clearly identifying the precise legal category that Member States are required to recognise or modify. This uncertainty is compounded by the Court’s equal treatment of intersex and transgender situations, whose comparability is largely assumed rather than demonstrated.

More fundamentally, Shipov marks an important step beyond the logic that characterised previous case law. Unlike earlier cases, no foreign legal status required recognition here. In this instance, article 21 TFEU was used not to ensure the continuity of a legal situation already established elsewhere in the Union, but to generate a positive obligation affecting the organisation of national civil-status law in circumstances where the transnational element appeared particularly weak. The AG’s attempt to justify that result through the functional role of identity documents is ultimately unpersuasive, not least because it fails to explain why birth certificates whose original entries are acknowledged to be accurate must nevertheless be amended in order to facilitate free movement.

Ultimately, the most significant issue raised by Shipov may not concern legal gender recognition at all, but the limits of Article 21 TFEU itself. Once the latter is capable of generating substantive obligations in areas formally falling within Member State competence, the distinction between the recognition of legal status and its creation becomes increasingly difficult to maintain. Whether the Court has provided a sufficiently clear and principled justification for that evolution remains an open question.

Ana Filipa Ribeiro (master’s student in European Union Law at the School of Law of University of Minho and ENDE Research Grant Holder – ref. UMINHO/BIM/2026/33) and Renan Bendel Vaughan (master’s student in European Union Law at the School of Law of University of Minho and ENDE Research Grant Holder – ref. UMINHO/BIM/2026/40)

Setting the scene: a small model in a large problem

On 1 July 2026, the Portuguese Government presented AMALIA,^[1] the first open large language model (LLM) developed in European Portuguese, developed by a consortium of national universities and research institutions with an investment of 5.5 million euros funded under the Recovery and Resilience Plan.^[2] The Minister of State and Administrative Reform framed the launch as a deliberate choice for digital sovereignty and the country’s technological autonomy.^[3]

The moment is politically charged. On 3 June 2026, the European Commission adopted its Communication on European Tech Sovereignty, acknowledging that the European Union (EU) remains structurally dependent on external suppliers for more than 80% of its products, services, infrastructures, and intellectual property in the digital domain.^[4] On 7 July 2026, the Action Plan on Cybersecurity and Artificial Intelligence acknowledged, more explicitly, that “frontier capabilities are mainly developed outside of the EU, and their availability is often determined by non-transparent, foreign-led processes”.^[5]

The strategic salience of this moment is not contained within the Union’s normative framework. The NATO summit held in Ankara on 7 and 8 July 2026, although its official programme scarcely mentioned the issue, was shaped by access to frontier artificial intelligence (AI) models as an unofficial undercurrent of the discussions: the United States controls access to the most advanced AI capabilities and determines unilaterally which allies may obtain them, leaving European allies dependent on technology they do not govern and whose availability may be curtailed by an external political decision.^[6]

AMALIA emerges at this juncture, positioned explicitly against the dependence described in both instruments. The model builds on EuroLLM-9B, subsequently expanded and optimised for European Portuguese,^[7] and was trained within the EuroHPC network, including the MareNostrum 5 supercomputer and the national supercomputer Deucalion.^[8] Conceived to preserve European Portuguese, to safeguard citizens’ national data from the reach of third-country jurisdictions, and to be progressively integrated into the public administration,^[9] the Portuguese Government classifies AMALIA, in the light of Regulation (EU) 2024/1689 (the AI Act), as a general-purpose AI model without systemic risk.^[10] A project of this profile becomes fully legible only against the Union’s own acknowledgement of structural dependence.

Technological dependencies and new vulnerabilities 

European technological sovereignty^[11] is articulated across several layers, with computational capacity operating as a decisive constraint. EuroLLM-9B, the base on which AMALIA was developed, was pretrained on 400 NVIDIA H100 graphics processing units (GPUs) on the MareNostrum 5 supercomputer.^[12] The subsequent training of AMALIA used 256 NVIDIA H100 GPUs. Council Regulation (EU) 2026/150, adopted in January 2026 to enable the AI Gigafactories, states that the next generation of frontier models will require “at least, three to four times the number of the most advanced AI processors currently available in the most powerful AI factories” and that “the existing mechanisms currently provided for under Council Regulation (EU) 2021/1173 are not sufficient”.^[13] The insufficiency of European infrastructure is thus recorded in the very normative text that seeks to expand it.

A second layer is added to this one: energy. Data-centre electricity consumption in the Union accounts for around 3% of total demand and is projected to more than double by 2030.^[14] In advanced economies, the construction of a transmission line takes between four and eight years, while grid-connection queues range from three to ten years.^[15] The physical constraint precedes industrial-policy choices.

The Draghi Report documents the scale differential. 73% of the foundation models developed since 2017 are United States-based and 15% Chinese-based; in 2023, venture capital invested in AI in the Union amounted to eight billion dollars, against 68 billion dollars in the United States and 15 billion dollars in China.^[16] The dependence is structural, and it extends to the critical infrastructures into which AI will be progressively integrated.

The Union’s cybersecurity framework confronts this landscape through instruments that only partially overlap. The Action Plan on Cybersecurity and Artificial Intelligence identifies a precise set of risks specific to AI systems integrated into critical infrastructures: “data and model poisoning, adversarial attacks, and prompt injection”.^[17] The AI Act imposes obligations of robustness, accuracy, and cybersecurity on providers of high-risk AI systems, including resilience against adversarial attacks.^[18] Those obligations fall on the provider of the system; Directive (EU) 2022/2555 (NIS2) regulates the entity operating the infrastructure into which the system is integrated.^[19] The normative articulation between the two regimes has not been constructed.

The integration of AI into critical infrastructures generates a further tension that the existing framework is structurally unable to resolve at the external level: where the source of the threat is a State actor, the response shifts into the domain of the CFSP, where decision-making requires unanimity in the Council and where the Union’s capacity to respond depends on a political attribution decision that the existing mechanisms are not designed to deliver at the speed the nature of the threat demands.^[20] The instruments available were conceived for a threat typology that the Commission itself acknowledges to have been overtaken.

From research excellence to technological capacity

The development of AMALIA represents a significant achievement for Portugal’s artificial intelligence ecosystem and contributes to the European Union’s broader objective of strengthening technological capacity in strategically important sectors.^[21] More broadly, the project brings into focus a recurring weakness in the European innovation ecosystem, namely the limited capacity to transform publicly supported research into technological assets capable of sustained development and sustained operational deployment.^[22]

This difficulty is particularly pronounced in AI. Indeed, a large language model does not become a mature technological asset simply because the research objectives associated with its initial development have been achieved.^[23]Rather, its continued relevance depends on access to adequate computing resources, the retention of specialised technical expertise and the ability to adapt the model as technologies and user requirements evolve.^[24] Accordingly, maintenance, refinement and deployment form part of the continuing development of the technology.

Against this background, AMALIA also illustrates the institutional consequences of this requirement. As a publicly funded research initiative, its initial development was financed under the Recovery and Resilience Plan and organised within a defined funding period.^[25] Although this model is consistent with the requirements of research financing, it does not necessarily provide the organisational continuity required for long-term technological development. Accordingly, a research project may conclude once its contractual obligations have been fulfilled, whereas an AI system intended for continued operation requires ongoing monitoring, maintenance and institutional support throughout its lifecycle.^[26] A further phase extending until 2027 has since been announced, with additional funding for the evolution of the model and the development of sovereign infrastructure. Nevertheless, the longer-term organisational framework supporting AMALIA beyond that phase remains to be determined.

The central difficulty therefore concerns the transition from research to sustained technological activity. In practice, public investment may establish the scientific foundations of a project without securing the expertise, infrastructure and financing required after the research phase has ended.^[27] As a result, a project may retain considerable scientific value without becoming a durable technological capability.

In this context, AMALIA exemplifies the broader difficulty of converting publicly supported research into durable technological capacity. Although its development confirms the availability of scientific expertise, its long-term significance will depend on whether the model can be maintained and integrated into productive activity beyond successive funding cycles. This question is also relevant to technological sovereignty. In particular, such sovereignty depends on the existence of structures capable of retaining strategic expertise and sustaining the development of critical technologies.^[28] Where advanced research is produced without the capacity to support its subsequent deployment, dependence on external providers may therefore persist even when the underlying knowledge originates within Europe. Accordingly, European competitiveness depends on the conditions under which research outputs can develop into stable technological activity.^[29]

This assessment does not call into question the value of publicly funded research. Rather, it requires greater precision concerning the objectives assigned to different forms of public intervention. Finite project structures may be appropriate where the principal objective is scientific advancement or experimental development. Where public policy also seeks to establish strategic technological capacity, additional institutional arrangements are required. The applicable legal framework must therefore address both the allocation of research funding and the conditions under which the resulting technologies can be maintained, developed and deployed within the European economy.

The Union’s institutional response

The structural weaknesses identified above consequently raise a constitutional question concerning the role that Union law can realistically perform in strengthening European technological capacity. This question becomes particularly important where Europe’s competitiveness deficit cannot be addressed through research funding and public investment alone.

At first sight, the Treaties provide no direct answer. As noted above, they confer no autonomous horizontal competence allowing the Union to pursue technological sovereignty, industrial autonomy or strategic resilience as independent legal objectives.^[30] Moreover, under Article 4(2) TEU, national security remains the sole responsibility of the Member States. Accordingly, the strategic importance of AI cannot, by itself, justify Union action outside the system of competences established by the Treaties.^[31]

Nevertheless, the absence of an express competence does not render the Union institutionally irrelevant. Union action may be founded on another Treaty competence where the aim and content of the measure fall within its scope, even if the measure also produces effects in other policy fields.^[32] This dynamic is particularly relevant to artificial intelligence because the same technological capabilities may support both civilian and security-related uses. Consequently, a measure adopted on the basis of Article 114 TFEU may also shape the technological environment on which strategically important capabilities depend.^[33]

Within this constitutional framework, the internal market assumes particular significance, since it provides a central legal mechanism through which the Union may establish common conditions for the development and circulation of emerging technologies.^[34] The relevant constitutional objective remains the prevention of regulatory fragmentation capable of impairing the functioning of the internal market. Even so, the practical effects of harmonisation may extend to the broader conditions governing technological development.^[35]

In this regard, Article 114 TFEU provides the principal legal basis for this form of harmonising action. According to settled case law, that provision permits the approximation of national rules where existing differences obstruct the fundamental freedoms or directly affect the functioning of the internal market.^[36] Furthermore, it may support preventive harmonisation where future obstacles resulting from regulatory divergence are sufficiently likely and the measure is designed to prevent them.^[37] Its constitutional rationale therefore remains closely connected to market integration.

The Artificial Intelligence Act exemplifies this institutional model. Adopted under Articles 16 and 114 TFEU, it establishes harmonised rules intended to improve the functioning of the internal market while ensuring a high level of protection of health, safety and fundamental rights. In relation to high-risk AI systems, its requirements influence organisational and technical choices throughout the system’s lifecycle, thereby shaping the conditions under which artificial intelligence is designed and deployed in the Union.^[38]

However, this broader effect remains subject to the constitutional limits imposed by the Treaties. In particular, Article 2(3) of the Artificial Intelligence Act preserves Member State competences concerning national security and excludes systems placed on the market, put into service or used exclusively for military, defence or national security purposes. Furthermore, recital 24 clarifies that systems serving both excluded and non-excluded purposes fall within the scope of the Regulation.

Even within those limits, the boundary between civilian and strategic technological capacity may be difficult to maintain during the development phase. Indeed, foundation models, computing infrastructure and specialised expertise may support several forms of subsequent deployment.^[39] Consequently, legislation governing civilian artificial intelligence may indirectly (but inevitably) affect capabilities that also possess strategic relevance. Such effects nevertheless arise from the lawful exercise of internal market competences and do not alter the constitutional allocation of powers.

From this perspective, the internal market may contribute to technological capacity by reducing legal fragmentation, improving legal certainty and enabling technological activities to develop across national borders. However, harmonisation cannot replace the financing, infrastructure and industrial organisation required to sustain technological development. Its function is therefore to establish the legal conditions within which such capacity may emerge and expand.

Against this background, the simplification agenda raises a further question concerning the effect of regulatory reform on the common legal conditions established through internal market harmonisation. This question provides the basis for the following section.

Competitiveness, simplification, and the legal conditions of strategic autonomy 

The Commission’s diagnosis of Europe’s competitiveness deficit identifies three transformational imperatives: “closing the innovation gap”, “a joint roadmap for decarbonisation and competitiveness”, and “reducing excessive dependencies and increasing security”.^[40] None of them primarily attributes the problem to regulation. The Competitiveness Compass locates the root cause in Europe’s difficulty in converting scientific discoveries into marketable technologies and in integrating them into its industrial base.^[41] AMALIA illustrates the pattern: a high-quality scientific project whose deliverables-driven model keeps it at a distance from the industrial scale the Union identifies as strategically decisive.

The institutional response to this diagnosis is nevertheless structured around a different hypothesis: that regulatory agility is, in itself, an instrument of competitiveness. The April 2026 Better Regulation Communication formalises urgency as an autonomous procedural category, with differentiated procedures that dispense with impact assessment and public consultation where “the political context creating a need for urgent action” justifies it.^[42] In 2024, 85% of the legislative proposals were presented without an impact assessment – the highest figure recorded since 2014 and nearly double the average for the three preceding years.^[43] Although not every proposal legally required an impact assessment, the figure reflects a structural shift in the Commission’s approach to procedural obligations. Alemanno argues that the constitutional reach of the operation extends further still: Treaty obligations in relation to proportionality, participatory democracy, and the protection of fundamental rights are reclassified as instruments of discretionary management, adjustable to the political moment.^[44]

That displacement is constitutionally significant. Article 11(3) TEU imposes on the Commission an obligation to conduct “broad consultations with parties concerned”, a requirement that the Commission’s own Better Regulation guidelines acknowledge as binding.^[45] As regards Article 5(4) TEU, the Court clarified in Czech Republic v Parliament and Council that the absence of an impact assessment “cannot be regarded as a breach of the principle of proportionality” only where the EU legislature “is in a particular situation requiring it to be dispensed with and has sufficient information enabling it to assess the proportionality of an adopted measure”.^[46] In the Mobility Package judgments, the Grand Chamber partially annulled Regulation (EU) 2020/1055 precisely on the ground that the EU legislature had not demonstrated that it possessed sufficient information to assess the proportionality of the measures adopted.^[47] In a recommendation of November 2025, the European Ombudsman found maladministration in the preparation of the Omnibus packages, on the ground that the urgency invoked was not adequately reasoned, that the public consultation was inadequate, and that the necessary climate assessments had not been documented.^[48] In June 2026, the Ombudsman closed the inquiries following the Commission’s overall agreement to implement the recommendations, while noting that the effectiveness of the resulting measures remained to be assessed.^[49]

The question raised by this architecture is whether the institutional route chosen to pursue regulatory simplification is compatible with the procedural guarantees that Articles 5(4) and 11(3) TEU, read in the light of the Court’s case-law, render binding irrespective of the urgency claimed. The technological sovereignty that the Commission professes to pursue depends, in legal terms, on the very procedural guarantees that the simplification agenda is designed to attenuate.

Against this background, the simplification agenda, including the Omnibus packages, must be assessed in light of the institutional function of internal market legislation. Although the Commission presents simplification as a means of reducing burdens and strengthening legal certainty,^[50] reforms that narrow harmonised requirements or create unevenly applied exemptions may recreate regulatory fragmentation. For projects such as AMALIA, long-term development depends on predictable regulatory conditions capable of supporting deployment beyond the national context. Simplification should therefore be assessed according to whether it facilitates deployment across the internal market without weakening the coherence of the common regulatory framework.

The limits of the legal answer 

AMALIA reveals that European technological capacity depends on continuity between publicly supported research and deployment across the internal market, a transition sustained by the predictable legal conditions created through harmonisation. Accordingly, simplification must be assessed through its effects on that common framework, since procedural acceleration acquires strategic value only where it preserves the coherence required for technological activity to reach European scale. That assessment must account for what law cannot resolve on its own. The scale differential documented by the Draghi Report – in computing infrastructure, energy access, and venture capital – precedes legal choices and conditions their effects, rather than being a regulatory problem. The NATO summit in Ankara confirmed that access to frontier AI capabilities has become a dimension of transatlantic security architecture, with European allies dependent on technology they neither govern nor can replicate at the required speed. Technological sovereignty requires the material conditions – infrastructure, investment, and industrial organisation – that harmonisation alone cannot supply. The question ultimately left to the Union is whether technological sovereignty can be constructed through a legal order whose foundations are increasingly perceived as obstacles to speed.

^[1] AMALIA is the acronym for Agente Multimodal Automático de Linguagem com Inteligência Artificial, which may be translated as “Automatic Multimodal Language Agent powered by Artificial Intelligence.”. The scientific coordination of the AMALIA Project at the University of Minho is entrusted to Professor Paulo Novais, from the Department of Informatics of the School of Engineering, where he coordinates LASI (Associated Laboratory of Intelligent Systems), the largest associated laboratory dedicated to Artificial Intelligence in Portugal. He is also a Key Staff Member of the Jean Monnet Centre of Excellence “Digital citizenship and technological sustainability: achieving CFREU effectiveness in the digital decade” (CitDig), funded under the ERASMUS+ Programme.

^[2] Ministério do Ambiente e Reforma do Estado (MARE) and Ministério da Educação, Ciência e Inovação (MECI), Portugal apresenta o AMALIA, o primeiro modelo de linguagem aberto desenvolvido em português europeu, Comunicado (Lisbon, 1 July 2026), 1–4, accessed July 17, 2026, https://portugal.gov.pt/gc25/comunicacao/comunicados/portugal-apresenta-o-amalia-o-primeiro-modelo-de-linguagem-aberto-desenvolvido-em-portugues-europeu

^[3] Gonçalo Matias, Minister of State and Administrative Reform, quoted in MARE and MECI, Portugal apresenta o AMALIA, 2.

^[4] European Commission, Communication on European tech sovereignty, COM(2026) 503 final, 3 June 2026, 1, https://digital-strategy.ec.europa.eu/en/library/communication-european-tech-sovereignty-accompanied-eu-open-source-strategy.

^[5] European Commission, Action plan on cybersecurity and artificial intelligence, COM(2026) 577 final, 7 July 2026, 2, https://digital-strategy.ec.europa.eu/en/library/eu-action-plan-cybersecurity-and-artificial-intelligence.

^[6] NATO, The Ankara Summit declaration, 8 July 2026, accessed July 17, 2026, https://www.nato.int/en/about-us/official-texts-and-resources/official-texts/2026/07/08/the-ankara-summit-declaration. On AI capabilities as a priority at the summit, see LeAnne Noelani Howard, “Allies committed to $50 billion in defense industry deals”, in Atlantic Council, Eleven Takeaways from the NATO Summit in Ankara, 9 July 2026, accessed July 17, 2026, https://www.atlanticcouncil.org/dispatches/eleven-takeaways-from-the-nato-summit-in-ankara/.

^[7] MARE and MECI, Portugal apresenta o AMALIA, 9 (Q&A no. 29).

^[8] MARE and MECI, Portugal apresenta o AMALIA, 3.

^[9] MARE and MECI, Portugal apresenta o AMALIA, 2.

^[10] MARE and MECI, Portugal apresenta o AMALIA, 5 (Q&A no. 9). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act), OJ L 2024/1689, 12 July 2024, http://data.europa.eu/eli/reg/2024/1689/oj.

^[11] See European Commission, Communication on European tech sovereignty, defining technological sovereignty by reference to Europe’s ability to develop and control key technologies while reducing external dependence. The concept of technological capacity is used in this article as an analytical category describing the institutional conditions required for sustained technological development and deployment. See also European Commission, “State of the digital decade 2026”, accessed July 19, 2026, https://digital-strategy.ec.europa.eu/en/policies/2026-state-digital-decade-package, emphasising funding continuity and Europe’s capacity to develop and deploy critical technologies. 

^[12] Pedro Henrique Martins et al., “EuroLLM: Multilingual Language Models for Europe”, arXiv, 2024, 5, accessed July 17, 2026, https://doi.org/10.48550/arXiv.2409.16235.

^[13] Council Regulation (EU) 2026/150 of 16 January 2026 amending Regulation (EU) 2021/1173 on establishing the European High Performance Computing Joint Undertaking, OJ L 2026/150, 19 January 2026, recital 6, http://data.europa.eu/eli/reg/2026/150/oj.

^[14] Agnieszka Widuto, AI and the energy sector, EPRS Briefing PE 775.859 (Brussels: European Parliamentary Research Service, July 2025), 1–3, accessed July 17, 2026, https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2025)775859.

^[15] Widuto, AI and the energy sector, 5.

^[16] Mario Draghi, The future of European competitiveness: a competitiveness strategy for Europe, Part B (Brussels: European Commission, 2024), 79, https://commission.europa.eu/topics/competitiveness/draghi-report_en.

^[17] European Commission, Action plan on cybersecurity and artificial intelligence, 7.

^[18] Regulation (EU) 2024/1689, Article 15.

^[19] Directive (EU) 2022/2555 of the European Parliament and of the Council of 14 December 2022 on measures for a high common level of cybersecurity across the Union (NIS2), OJ L 333, 27 December 2022, Article 21, http://data.europa.eu/eli/dir/2022/2555/2022-12-27.

^[20] Articles 24(1) and 31(1) TEU (unanimity requirement for CFSP decisions); Article 215 TFEU (restrictive measures). See also Council Decision (CFSP) 2019/797 of 17 May 2019 concerning restrictive measures against cyber-attacks threatening the Union or its Member States, OJ L 129I, 17 May 2019, http://data.europa.eu/eli/dec/2019/797/2026-05-13; Council Regulation (EU) 2019/796 of 17 May 2019 concerning restrictive measures against cyber-attacks threatening the Union or its Member States, OJ L 129I, 17 May 2019, http://data.europa.eu/eli/reg/2019/796/2026-05-13.

^[21] This objective is also reflected in the Commission’s Frontier AI Grand Challenge, won in June 2026 by the EUROPA consortium, led by Domyn. The consortium was selected to develop an openly available European frontier AI model covering all 24 official EU languages and exceeding 400 billion parameters. The initiative was presented as part of the Union’s ambition to develop advanced AI capabilities on European terms. See European Commission, Commission Selects EUROPA consortium as the winner of the Frontier AI Grand Challenge (19 June 2026), accessed July 19, 2026, https://digital-strategy.ec.europa.eu/en/news/commission-selects-europa-consortium-winner-frontier-ai-grand-challenge-project-build-european-open. See Pedro Madeira Froufe, “Ter ou não ter ‘fome’”, Correio do Minho (18 July 2026), accessed July 19, 2026, https://www.correiodominho.pt/cronicas/ter-ou-nao-ter-fome/18260. 

^[22] Draghi identifies the need to improve “the pipeline from innovation to commercialisation” and to remove the barriers preventing innovative companies from growing and attracting finance. Mario Draghi, The future of European competitiveness: a competitiveness strategy for Europe, Part A (Brussels: European Commission, 2024), 18, https://commission.europa.eu/topics/competitiveness/draghi-report_en.

^[23] As Bommasani et al. observe, foundation models are “unfinished intermediate objects” that require subsequent adaptation for downstream applications, underscoring that their initial development does not exhaust their technological lifecycle. Rishi Bommasani et al., On the opportunities and risks of foundation models (Stanford, CA: Stanford University, Center for Research on Foundation Models, 2021), 5, accessed July 17, 2026, https://crfm.stanford.edu/report.html.

^[24] Ping Song, Adegboyega Ojo, and Edward Curry, “Trustworthy requirements for foundation models—A comprehensive survey and roadmap”, Engineering Applications of Artificial Intelligence (2025): 5, accessed July 17, 2026, https://doi.org/10.1016/j.engappai.2025.113111.

^[25] Portuguese Government states that AMALIA was financed through the Recovery and Resilience Plan, developed by public entities and implemented according to an 18-month timetable providing for successive beta, base and multimodal versions. See Portuguese Government, “Modelo de Linguagem em Grande Escala para a língua portuguesa” (29 November 2024), accessed July 17, 2026, https://portugal.gov.pt/gc24/comunicacao/noticias/modelo-de-linguagem-em-grande-escala-para-a-lingua-portuguesa.

^[26] EU-funded research projects operate within grant agreements that define their duration and contractual obligations. By contrast, OECD and NIST guidance treats monitoring and maintenance as continuing aspects of the AI-system lifecycle. See European Research Executive Agency, “Horizon Europe – Grants & Reporting”, accessed July 17, 2026, https://rea.ec.europa.eu/horizon-europe-grants-reporting_en?prefLang=en; OECD, Recommendation of the Council on Artificial Intelligence, OECD/LEGAL/0449 (2019 and amended on 2024), 8, accessed July 17, 2026, https://legalinstruments.oecd.org/en/instruments/oecd-legal-0449; NIST, Artificial Intelligence Risk Management Framework 1.0 (2023), 38, accessed July, 17, 2026, https://www.nist.gov/itl/ai-risk-management-framework

^[27] Randolph Beard et al., “A valley of death in the innovation sequence: an economic investigation” (2009), in Research Evaluation 343, “executive summary”, accessed July 18, 2026, http://dx.doi.org/10.2139/ssrn.1093006, arguing that a gap may arise where public expenditure supports early-stage research without sufficient regard to the investment decisions required during the subsequent stages of innovation.

^[28] See Francesco Crespi et al., “European technological sovereignty: an emerging framework for policy strategy” (2021), Intereconomics(Springer, Heidelberg, Vol. 56, Issue 6), 349 and 353, accessed July 17, 2026, https://doi.org/10.1007/s10272-021-1013-6, arguing that scientific and technological capacities require corresponding capabilities for their economic exploitation and that technological sovereignty depends on consistent investment in critical technologies. The reference to institutional structures capable of retaining strategic expertise is the authors’ analysis.

^[29] Draghi, The future of European competitiveness, Part A, 7.

^[30] Articles 2 to 6 TFEU (a contrario).

^[31] However, it is important to note that Article 4(2) TEU does not establish a general exclusion from the scope of Union law for measures connected with national security. The European Court of Justice has held that “the mere fact that a decision taken by a competent national authority concerns State security cannot result in European Union law being inapplicable”. See Judgment CJEU ZZ v Secretary of State for the Home Department, 4 June 2013, case C-300/11, ECLI:EU:C:2013:363, para. 38; see also Judgment CJEU Privacy International, 6 October 2020, case C-623/17, ECLI:EU:C:2020:790, para. 44.

^[32] See Judgment CJEU European Parliament v Council, case C-490/10, 6 September 2012, ECLI:EU:C:2012:525, paras. 44-46, confirming that the appropriate legal basis must be determined by reference to the aim and content of the measure and that an incidental objective does not alter the legal basis required by its predominant purpose. See also Judgment CJEU Philip Morris Brands and Others, 4 May 2016, case C-547/14, ECLI:EU:C:2016:325, para. 60, holding that Article 114 TFEU may be relied upon where its conditions are satisfied even when the protection of public health is a decisive factor in the legislative choices made. These judgments support the proposition that the lawful exercise of a conferred competence may produce effects extending beyond its principal regulatory field.

^[33] See European Commission, White paper on options for enhancing support for research and development involving technologies with dual-use potential (24 January 2024), COM(2024) 27 final, 1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52024DC0027, defining dual-use research by reference to software and technology capable of being used for both civil and military purposes. See also Regulation (EU) 2024/1689, recital 24, which recognises that the same AI system may serve both excluded security-related purposes and civilian uses.

^[34] See Articles 26(2) and 114(1) TFEU. In the field of artificial intelligence, recital 1 of Regulation (EU) 2024/1689 expressly refers to “a uniform legal framework” for the development and marketing of AI systems, while recital 8 links harmonised rules to their free movement within the internal market.

^[35] Regulation (EU) 2024/1689, recitals 1, 3 and 8, which link the prevention of regulatory fragmentation to a uniform framework governing the development and use of AI systems. 

^[36] See Judgment Philip Morris Brands, paras. 57–58. The Court held that Article 114(1) TFEU authorises measures approximating national provisions whose object is the establishment and functioning of the internal market. Although the mere existence of disparities between national rules is insufficient, recourse to Article 114 TFEU is justified where those differences obstruct the fundamental freedoms and thereby directly affect the functioning of the internal market.

^[37] See Judgment CJEU Poland v European Parliament and Council, 4 May 2016, case C-358/14, ECLI:EU:C:2016:323, para. 33, holding that Article 114 TFEU may be used to prevent future obstacles to trade resulting from divergences in national laws, provided that the emergence of those obstacles is likely and the measure is designed to prevent them.

^[38] See Regulation (EU) 2024/1689, Articles 1(1)–(2), 9 and 72, and Annex IV.

^[39] This corresponds to the concept of dual use, which refers to technologies capable of serving both civilian and military purposes. See Regulation (EU) 2021/821, Article 2(1); and Jane Vaynman and Tristan A Volpe, “Dual use deception: how technology shapes cooperation in international relations”, International Organization, 77(3) (2023): 599, accessed July 17, 2026, https://doi.org/10.1017/S0020818323000140. The concept is used here in an analytical sense and does not imply that every technology mentioned falls within the product scope of Regulation (EU) 2021/821.

^[40] European Commission, A competitiveness compass for the EU: Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2025) 30 final (Brussels: European Commission, 29 January 2025), https://commission.europa.eu/topics/competitiveness/competitiveness-compass_en, 3.

^[41] European Commission, A competitiveness compass for the EU, 1.

^[42] European Commission, A simpler, clearer and better enforced EU Rulebook, COM(2026) 380 final, 28 April 2026, https://commission.europa.eu/publications/simpler-clearer-and-better-enforced-eu-rulebook_en; Alberto Alemanno, “Deregulating better regulation: the constitutional stakes of the Commission’s 2026 reform”, Verfassungsblog, 29 April 2026, accessed July 17, 2026, https://doi.org/10.59704/640336d7bff5903b.

^[43] Council of the European Union, Handling of impact assessments within the Council – Annual report covering the period January-December 2024, IA 13/MERTENS 2/POLGEN 16/BETREGS 7, Brussels, 8 April 2025, 14, accessed July 18, 2026, https://www.parlament.gv.at/gegenstand/XXVIII/EU/17052; Alberto Alemanno, “Codifying better regulation: constitutional requirements and reform proposals”, Submission to the European Commission Call for Evidence on the Communication on Better Regulation, HEC Paris Research Paper No. LAW-2026-1591, February 2026, 7, accessed July 17, 2026, http://dx.doi.org/10.2139/ssrn.6168211.

^[44] Alemanno, “Deregulating better regulation”.

^[45] Treaty on European Union, Article 11(3); European Commission, A simpler, clearer and better enforced EU Rulebook, 6–10; Alemanno, “Codifying better regulation”, 4–5, 10; Alemanno, “Deregulating better regulation”.

^[46] Judgment CJEU, Czech Republic v European Parliament and Council, 3 December 2019, case C-482/17, ECLI:EU:C:2019:1035, para. 85.

^[47] Judgment CJEU, Republic of Lithuania and Others v European Parliament and Council (“Mobility Package”), 4 October 2024, joined cases C-541/20 to C-555/20, ECLI:EU:C:2024:818, paras. 150–153.

^[48] European Ombudsman (Teresa Anjinho), Recommendation on the European Commission’s compliance with ‘Better Regulation’ rules and other procedural requirements in preparing legislative proposals that it considered to be urgent, cases 983/2025/MAS (“Omnibus”), 2031/2024/VB (“migration”) and 1379/2024/MIK (“CAP”), 25 November 2025, conclusion, accessed July 17, 2026, https://www.ombudsman.europa.eu/en/recommendation/en/215920.

^[49] European Ombudsman (Teresa Anjinho), Decision on the European Commission’s compliance with Its ‘Better Regulation’ rules and other procedural requirements in preparing legislative proposals that it considered to be urgent, cases 983/2025/MIK (“Omnibus”), 2031/2024/VB (“migration”) and 1379/2024/MIK (‘CAP’), 23 June 2026, conclusion, accessed July 19, 2026, https://www.ombudsman.europa.eu/en/decision/en/228151. The Ombudsman closed the inquiries following the Commission’s overall agreement to implement the recommendations, while noting that the effectiveness of the measures adopted remained to be assessed.

^[50] European Commission, A simpler, clearer and better enforced EU Rulebook, 2, linking streamlined procedures to greater legal certainty and identifying enforcement of the single market rulebook as a strategic priority. 

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