The post Futuro Nazionale is redefining what it means to be Italian first appeared on LSE European Politics.

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.

The post Far-righting the EU mainstream in Ceuta first appeared on LSE European Politics.

The post Europe’s strategic autonomy depends on open and secure science first appeared on LSE European Politics.

The post Iceland’s EU referendum – why voters stuck with the status quo first appeared on LSE European Politics.

The post Europeans do not support stricter conditions for family reunification first appeared on LSE European Politics.

The post Cyprus at the crossroads – can fresh talks break half a century of deadlock? first appeared on LSE European Politics.

The post Russia’s employers reveal the limits of Putin’s wartime consensus first appeared on LSE European Politics.

Wannes Bellaert, PhD researcher and academic assistant, Ghent University

Photo credit: OSeveno, via Wikimedia Commons

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.

The post Can Andy Burnham deliver a new chapter in UK-EU relations? first appeared on LSE European Politics.

The post How Ukrainian refugees in the UK negotiate identity and whiteness online first appeared on LSE European Politics.

The post AI in farming must put animal welfare first first appeared on LSE European Politics.

The post Keep the faith – when central bankers turn to God first appeared on LSE European Politics.

The post The EU has a duty to reform football first appeared on LSE European Politics.

The post The Ceuta crisis shows social media is now central to border management first appeared on LSE European Politics.

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.

The post What role should the Council of the Baltic Sea States play in today’s fractured world? first appeared on LSE European Politics.

The post Why not give immigrants the right to vote? first appeared on LSE European Politics.

The post A bee line to Downing Street – Andy Burnham and the power of the European mayor first appeared on LSE European Politics.

The post When does EU crisis management work? first appeared on LSE European Politics.

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.

In the meantime, we are always open to receiving new academic contributions from our readers. If you have an innovative, dynamic, thoughtful piece that you believe would fit in this blog feel free to send it to us at: unio.cedu@direito.uminho.pt.

If you would like to catch up on some reading on EU matters please check our news, comments, essays, reviews, and case law of the ECJ sections. Do not forget to subscribe to the blog by filling your email on the “FOLLOW THE OFFICIAL BLOG OF UNIO” section in the sidebar so you can be updated on all our latest posts.

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. 

Picture credit: by http://www.kaboompics.com on pexels.com.

Professor Kees Groenendijk, Radboud University, Emeritus and Professor Elspeth Guild, University of Liverpool

Photo credit: Dietmar Rabich / Wikimedia Commons / “Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219” / CC BY-SA 4.0

On 3 March 2022 the EU legislator, for the first time, opened a temporary protection scheme under Directive 2001/55 for those fleeing the Russian invasion of Ukraine. While the Directive limits the duration of any scheme to three years maximum, the EU legislator has already extended the scheme to five years and is currently reflecting on where to go next. The validity of the extra extension has already been considered by Peers, Ineli-Ciger and others and for the moment the Court of Justice has yet to be asked. 

In the meantime, the war in Ukraine continues. Some have assessed that at the current rate of progress, it would take Russia centuries and tens of millions of deaths to succeed in occupying Ukraine. It seems that Ukrainian attacks in Russia are causing havoc and the Ukrainian military is holding up and diversifying its strategy. There is little or no news about any peace negotiations. Last year Eurostat advised that 4.31 million non-EU citizens who fled Ukraine as a consequence of the Russian war of aggression against Ukraine had a temporary protection status in the EU. The number is unlikely to have diminished since then. Many of these people arrived in the EU soon after the opening of the scheme and will soon have been resident in the EU for five years.

In this blog, we examine the pressing need for a common EU approach to providing a durable status to those who are in the EU and address some of the issues which are being expressed by some Member States and EU institutions. In 2023, we examined the nature of the temporary protection scheme and the challenges for the Member States. In our contribution to Govaere and Graben The Impact of War (in Ukraine) on the EU Hart, 2025) we examined the options available to the EU legislator and Member States regarding the long term status of beneficiaries of the Temporary Protection scheme. At that time we strongly recommended that there would need to be an EU wide scheme to bring these persons into a stable and permanent status. We proposed a number of options, from the most liberal – a modified free movement of persons regime with Ukraine in the context of the EU-Ukraine enlargement procedures to the most limited a special scheme limited to those who are already reaching the end of the scheme’s life span. 

What we did not expect at the time of writing was that the EU legislator would simply continue to extend the scheme notwithstanding the express limit in the directive to three years. But this has been the policy option for the moment. 

In September 2025, a Council Recommendation proposed that there be a transition into national or EU legal statuses for those currently benefitting from temporary protection. Few, however, have managed to do so. problem is the numbers. In 2024, according to Eurostat  the Member States managed to issue 3.5 million first residence permits to non-EU citizens. Adding 4.31 million applications to change status or be issued a new permit in a different status would undoubtedly cause consternation to the officials charged with the task. Further, as we argued before, unless there is a common EU status for temporary protection beneficiaries any differences in treatment could result in them moving among the Member States in search of greater stability.

In one of the most important destination states for temporary protection beneficiaries the following information is available: according to the Central Alien’s Registration a total of 1,346,200 displaced persons from Ukraine were living in Germany on 30 April 2026, more than 96% having Ukrainian nationality. 88% received a residence permit for temporary protection under Directive 2001/5 and §24 of the Aufenthaltsgesetz, 7% applied for that residence permit but their applications are still pending, and 2% applied for international protection. The remaining 3% did not apply for either temporary or international protection. According to the same source, 467,100 displaced persons from Ukraine who came to Germany between February 2022 and 31 December 2025, were no longer living in Germany at that date (or have otherwise disappeared from the register). Thus, a quarter of the displaced persons who came to Germany after the Russian war of aggression no longer live in that member state. Apparently, few displaced persons received a national or an EU-residence permit instead or in addition to their temporary protection status.

In light of these pressing issues and the difficulty which the EU legislator is having with the question, we are now revisiting the subject with a view to providing a clear action plan to provide these people with security while assuaging concerns of some Member States.

When the EU legislator first addressed the issue of security of residence for third country nationals resident in the EU it adopted a directive in 2003. Having commissioned research on the normal period of residence Member States require for third country nationals to spend in a state before enjoying security of residence, the EU legislator alighted on the period of five years as the most appropriate to ensure genuine integration and fair treatment to resident third country nationals. The same time period should be applicable also to temporary protection beneficiaries on the basis of the same arguments.

In light of the difficulties of the EU legislator to adapt any existing measure to resolve the pressing need to provide certainty and security of residence of Ukraine temporary protection beneficiaries we now propose the following course of action.

The Proposal and Adoption of a new EU legal instrument

The Commission should propose a new legal instrument based on Article 79(2)(a) and (b) TFEU consisting of the following five essential elements:

1. Beneficiaries of temporary protection from Ukraine who have resided legally in an EU Member State for five years retain the rights they acquired under Directive 2001/55/EC or under national law in that Member State. The transition should be fully automatic.

2. Member States may not introduce new restrictions on the right of residence, the access to (self-)employment, and access to general and vocational education applicable to the persons referred to in point 1.

3. Member States may withdraw a right of residence acquired under point 1 only on the exclusion grounds listed in Article 28 of Directive 2001/55/EC, the grounds relating to public policy, public security or public health listed in Article 27 of Directive 2004/38/EC, or in case the person has not been present in the territory of the European Union for a period of 12 consecutive months (cfr. Article 9(1)(c) of Directive 2003/109/EC).

After five years of lawful residence (and employment during part of those five years) termination of residence on economic grounds is no longer permitted. [cfr. for third-country nationals with an EU long-term residence permit, according to Article 12(2) of Directive 2003/109/EC, and for Union citizens, according to Article 16(4) of Directive 2004/38/EC.]

4. In case of the loss of the right of residence pursuant to point 3, the rights under Directive 2001/55/EC are reacquired. In case the temporary protection for beneficiaries from Ukraine has come to an end,  the national law of the Member State shall apply to the third country nationals mentioned in the first sentence.

5. Member States have the right to adopt or maintain more favorable provisions.

Three Main Aims

Establishing an almost uniform transitional residence status at EU level, as long as no other more stable and durable residence status is acquired under EU or national law, would serve three aims: (1) granting secure residence rights would on the one hand promote the integration of those wanting to remain in their Member State of residence and (2) on the other hand support the voluntary return of those considering return to Ukraine by explicitly allowing for absence from the EU up to twelve months. (3) The third aim is the reduction of administrative burden through the quasi-automatic acquisition of durable  residence rights after five years of temporary protection.

The majority of temporary protection beneficiaries from Ukraine entered their host Member States in 2022. By 2027, these individuals will have resided legally in that Member State for five years on the basis of Directive 2001/55/EC. From mid-2027, the abovementioned transitional EU residence status should will be acquired gradually and automatically on the basis of EU law without an application or a decision by an administrative authority. The likelihood of large numbers of asylum procedures and the associated burden on asylum authorities and, potentially, the courts will be reduced, whilst the continued protection needs remain guaranteed at the level provided in Directive 2001/55/EC. The second sentence of Article 8(1) of that directive, concerning documents to be issued, will continue to apply, pursuant to point 1. 

Further Explanation

The proposed regulation utilizes elements of the residence status of third-country nationals with an EU long-term residence permit under Directive 2003/109/EC and the status of EU citizens under Directive 2004/38/EC. The proposed scheme also serves Ukraine's interests regarding the voluntary return of Ukrainian citizens and represents a preferential treatment of Ukrainian citizens under EU migration law, compatible with Ukraine’s status of candidate member state, without requiring Ukraine's membership in the European Union or establishing EU citizenship for Ukrainian citizens. The scheme does not provide for more intra-EU mobility with this durable residence right than under the Temporary Protection Directive before acquisition of the EU-long term residents’ permit or Union citizenship.

The scheme clarifies that, after five years of lawful residence in a Member State, deportation to Ukraine is only possible in exceptional individual cases and that the war refugees and their families are part of Europe. Individual review by immigration authorities only in cases of loss of the durable residence right. Reunification with family members from Ukraine or family members living in other Member States would be governed by Article 15 of Directive 2001/55/EC, the Family Reunification Directive 2003/86/EC, or, in case those the relevant provisions of those two instruments are not applicable, by national law. Pursuant to point 1 of the proposed new instrument, the right to apply for asylum, confirmed in Article 17 TPD will continue to apply to persons with the new EU status. This transitional scheme would also apply to third-country nationals without Ukraine’s citizenship who acquired temporary protection under Directive 2001/55/EC.

At present, war refugees granted temporary protection under Directive 2001/55/EC are excluded from the personal scope of the EU Long-Term Residence Directive 2003/109/EC, the Blue Card Directive 2021/1883/EU, the Single Permit Directive 2024/1233/EU, and the Students and Researchers Directive 2016/801/EU. The proposed new EU-status is not mentioned in Articles 2 or 3 of these four directives. The exclusion clause in those four directives no longer obstructs access to employment and social inclusion in Member States on the basis of those directives. The previous residence on the basis of Directive 2001/55 counts as lawful residence for the application of those four directives.

One final remark

As long as the Russian war of aggression in Ukraine continues, Directive 2001/55/EC should be extended for (a) new war refugees from Ukraine, and (b) war refugees from Ukraine who have resided in a Member State for less than five years and are, hence not yet covered by the transitional scheme.

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.) and Gonçalo Martins de Matos (PhD candidate & Master’s in Judiciary Law at the School of Law of the University of Minho)

In March 2026, the Portuguese Parliament started a rollback of the protection of trans and intersex persons in the country, by repealing Law no. 38/2018 of the 7^th of August,[1] and introducing several bills that – if approved – will mean a major regression on LGBTIQA+[2] people’s rights.[3] As we come out of Pride Month, we must ask if Portugal’s recent position is compatible with the foundational values of the EU and recent developments of the jurisprudence of the Court of Justice of the European Union (“CJEU”).

The potential rollback of rights being discussed in Portugal is not dissimilar from the Hungarian legislation that targeted LGBTIQA+ rights and which gave rise to the recently delivered Judgment C-769/22 Commission v. Hungary.[4] Following an infringement procedure filed against Hungary, the CJEU was called upon to rule on the conformity of that legislation with the fundamental values of the EU. Beyond the issues relating to the specific EU law provisions applicable, the main question underlying this infringement procedure was the consideration of a breach of Article 2 TEU as a self-standing ground for finding an infringement of EU law, i.e. granting justiciability to Article 2.[5] 

The CJEU found that the values set out in Article 2 TEU “lay down legally binding horizontal obligations within the Union and define the very identity of the Union as a common legal order”,[6] which is why, considering the principle of mutual trust, no Member State is to exercise its powers in a way that would go against those values. These were accepted on a reciprocal basis by the Member States, have freely and voluntarily been subscribed, and mean an obligation of respect and promotion.[7] In that sense, the CJEU ruled that “Such stigmatisation and marginalisation, which is tantamount to establishing, maintaining or reinforcing the social ‘invisibility’ of some members of society, runs counter to the values of respect for human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU”.[8]

In Portugal, the recently repealed Law no. 38/2018 aimed to respond to societal worries when it came to the protection of trans persons – specifically those of the LGBTIQA+ community – as well as follow the 2015 recommendations on this issue of the European Commissioner for Human Rights.[9] This law protected the right to self-determination and expression of sex/gender characteristics – as a corollary of the fundamental right to free personality development –, stating that all persons were free and equal in dignity and rights, and establishing a State-obligation to create the necessary conditions for the full and effective exercise of the right to self-determination.

It also allowed for minors, between the ages of 16 to 18 years-old, to legally change their name and sex in legal documents as long as they complied with some basic requirements:  (i) the request had to be made by their legal guardians, (ii) there had to be a face-to-face hearing of the applicant to assess their express, free and informed consent, (iii) a medical or psychological report attesting exclusively to the minor’s express, free and informed consent, (iv) and the decision had to take into account the best interests of the minor.[10] This issue is at the centre of the discourse around the recent repeal.

Back in 2021, when Hungary introduced the legislation that led to the infringement procedure discussed above, Portugal was presiding over the Council, and decided to maintain a neutral position on the matter, arguing the need for institutional impartiality, something that was highly contested in Portuguese civil society – and some could argue, an early indication of the path now being followed –, as this was a question of the protection of fundamental rights.[11]

Currently, Law no. 7/2011 of the 15^th of March is back in force, awaiting the approval of new legislation on the matter of the legal recognition of trans identities. At the time, this law had been a milestone in the history of trans rights in Portugal, creating the first legal procedure for changing sex and first name on the civil registry.[12] However, for today’s standards, it is not enough. First, Articles 2 and 3 require a diagnosis of “gender identity disorder” to make this change possible, leading to excessive medicalisation of trans identities. Secondly, it does not make any provisions when it comes to young people. These were some of the reasons at the basis of European Commissioner for Human Rights’ recommendations, which led to its substitution by Law no. 38/2018.

When it comes to the current state of things, the parties belonging to the coalition that currently forms the Portuguese government presented legislative proposals. On one hand, PSD argues for the reintroduction of the requirement for a mandatory medical report in order for a change of sex and name in the civil registry to happen. This report would need to include a diagnosis of “gender incongruence” and would be prepared by a specialised multidisciplinary clinical team and signed by at least one specialist doctor and psychologist. This from the age of 16, but before that age the requirement is a specialised medical evaluation and the informed and express consent of those holding parental responsibilities or legal guardianship.[13]

More conservatively, the other party in the coalition – CDS-PP – proposed a bill that prohibits puberty blockers and/or hormone therapy in the treatment of gender dysphoria before 18 years of age in order to “protect the integrity of children”, thus not truly recognising adolescents’ capacity to decide on issues relating to their own sexual or gender identity.[14]

The Chega party went further, by introducing new articles for the “protection of children and young people”, providing for a ban on the inclusion of gender ideology in program content in educational establishments for children under 18, determining that parents or legal guardians should be solely responsible for education in this field.[15]

In the Judgment C-769/22, the European Commission already contested this argument, namely in paragraphs 102 through 105. It did so specifically by arguing that the right of parents to oversee the education of their children and taking into account their religious and philosophical convictions as provided for in Article 14(3) of the Charter of Fundamental Rights of the European Union cannot be interpreted in a way that justifies Member States to adopt legislation that discriminates and jeopardises the right to free speech and the human dignity of third persons, including minors.[16]

Additionally, the use of the word “children” to refer to young people under 18-years-old does not seem to be happenstance. The Law no. 38/2018 provided allowances for what are truly adolescents, meaning young people old enough not only to understand but also to discuss complex issues in depth, including those of a medical nature; this has been the general experience of healthcare professionals. It does not seem erroneous for this to apply to sexual health care and the legal change of identification documents, provided the adolescent shows capacity.[17]

These proposals are now under analysis at the Comissão de Assuntos Constitucionais, Direitos, Liberdades e Garantias, the body responsible for debating and overseeing matters related to, amongst others, the interpretation of the Constitution and fundamental rights.[18]

Although PSD and Chega consider the 2011 system “balanced”, several organisations advocating for transgender and intersex people have challenged the proposals, which they describe as a step backwards, and opinions from clinicians that the projects in question constitute a setback and are not based on substantiated scientific evidence are unanimous.[19]

If the proposed changes are adopted by the Portuguese parliament, the resulting legal regime will have effectively backslid to an inferior level of fundamental rights protection than the current one. That alone would be enough to trigger an infringement procedure based on the breach of the principle of non-discrimination and of the principle of the highest level of protection, established respectively in Articles 21 and 53 of the Charter of Fundamental Rights of the EU. However, taking into account what we have learned from the analysis of Judgment C-769/22 Commission v. Hungary, the discrimination posed by the legislative proposals in question are also in breach of the fundamental values of the EU enshrined in Article 2 TEU.

The obvious and inevitable consequence of adopting restrictive legislation in matters of fundamental rights, focusing on the rights of sexual and/or gender minorities, is the finding of a breach of the EU’s fundamental values and, consequently, being subject to an infringement procedure similar in nature to the one analysed above.[20]

Nevertheless, irrespective of what will be the European Commission’s decision once this rollback is solidified, the high-level of protection of LGBTIQA+ rights in the EU that often led authors to call it “rainbow Europe”[21] is under threat.

[1] SIC Notícias and Lusa, “Parlamento debate identidade de género: Chega, PSD e CDS querem revogar ou alterar legislação”, SIC Notícias, March 19, 2026, accessed March 30, 2026, https://sicnoticias.pt/pais/politica/2026-03-19-parlamento-debate-identidade-de-genero-chega-psd-e-cds-querem-revogar-ou-alterar-legislacao-121fb6c0.

[2] The “LGBTIQA+” terminology used in this post is controversial, with other designations used by authors and institutions. Here we follow the one adopted by the European Commission and accepted by society at large; but even at the EU level other terminology has been used: in 2015 the term LGBT was utilised, in 2020 it changed to the term LGBTI, in 2021 LGBTIQ appeared in official documents, and more recently LGBTIQA+ was embraced.

[3] IGLYO, “Portugal: Don’t roll back trans and intersex rights”, March 18, 2026, accessed March 31, 2026, https://www.iglyo.org/news/portugal-dont-roll-back-trans-and-intersex-rights.

[4] Judgment CJEU European Commission v. Hungary, 21 April 2026, Case C-769/22, ECLI:EU:C:2026:326.

[5] Gonçalo Martins de Matos, “Glimpsing the tunnel exit: the justiciability of Article 2 TEU and the future of the European Union”, UNIO EU Law Journal – The Official Blog, 3 April 2026, accessed 7 July 2026, https://officialblogofunio.com/2026/04/03/glimpsing-the-tunnel-exit-the-justiciability-of-article-2-teu-and-the-future-of-the-european-union/.

[6] Judgment Commission v. Hungary (C-769/22), recital 546.

[7] Judgment Commission v. Hungary (C-769/22), recital 549.

[8] Judgment Commission v. Hungary (C-769/22), recital 555.

[9] Assembleia da República, Comissão de Assuntos Constitucionais, Direitos, Liberdades e Garantias, “Parecer do Projeto de Lei n.º 242/XIII/1.ª (BE)”, June 29, 2016, 2.

[10] Ana Cardoso, «The protection of LGBTIQ people in the European Union. The difference between “sex” and “gender” – its merits and shortfalls» (Masters diss., University of Minho, 2023): 75-78.

[11] Ana Cardoso, “The Hungary question: how are the rights of LGBTIQ people in the EU?”, UNIO EU Law Journal – The Official Blog, June 28, 2021, accessed March 30, 2026, https://officialblogofunio.com/2021/06/28/the-hungary-question-how-are-the-rights-of-lgbtiq-people-in-the-eu/.

[12] Assembleia da República, Lei n.º 7/2011, de 15 de março, accessed June 25, 2026, https://diariodarepublica.pt/dr/detalhe/lei/7-2011-278187.

[13] Grupo Parlamentar Partido Social Democrata, Projeto de lei n.º 486/XVII/1ª que altera o regime jurídico de mudança de sexo e de nome próprio no registo civil, March 06, 2026, accessed June 03, 2026, https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=356298.

[14] Grupo Parlamentar do CDS-PP, Projeto de Lei N.º 479/XVII/1ª que protege a integridade das crianças e proíbe a utilização de bloqueadores da puberdade e/ou terapia hormonal no tratamento da incongruência ou disforia de género em menores de 18 anos, March 05, 2026, accessed June 03, 2026, https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=356287.

[15] Grupo Parlamentar do Chega, Projeto de Lei n.º 391/XVII/1.ª que actualiza a regulação do procedimento de mudança de sexo e de nome próprio no registo civil, em particular no que diz respeito à protecção das crianças e jovens, à luz da evidência científica mais recente e em consonância com os princípios da bioética e da dignidade da pessoa humana, January 21, 2026, accessed June 03, 2026, https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=346025.

[16] Judgment Commission v. Hungary (C-769/22), recitals 102-105.

[17] Katherine Romero and Rebecca Reingold, “Advancing adolescent capacity to consent to transgender-related health care in Colombia and the USA”, Reproductive Health Matters, v. 21, no. 41 (2013): 186-187 and 189.

[18] Assembleia da República, “Comissão de Assuntos Constitucionais, Direitos, Liberdades e Garantias”, accessed June 25, 2026, https://www.parlamento.pt/sites/COM/XVIILeg/1CACDLG/Apresentacao/Paginas/default.aspx.

[19] Joana Mourão Carvalho, “Parlamento aprova reintrodução da obrigatoriedade de validação médica para a mudança de género”, euronews, March 20, 2026, accessed Jue 25, 2026, https://pt.euronews.com/2026/03/20/parlamento-aprova-reintroducao-da-obrigatoriedade-de-validacao-medica-para-a-mudanca-de-ge. Fernada Câncio, “Identidade de Género: PSD quer de volta a lei “inaceitável” de 2011 que Cavaco vetou”, Diário de Notícias, March 19, 2026, accessed June 25, 2026, https://www.dn.pt/política/identidade-de-gnero-psd-quer-de-volta-a-lei-inaceitvel-de-2011-que-cavaco-vetou.

[20] For more on these consequences, see Gonçalo Martins de Matos, “Defending the Rule of Law in the European Union: the role of the infringement procedure”, UNIO – EU Law Journal, Vol. 12, No. 1 (2026), https://doi.org/10.21814/unio.12.1.7524, 96-110.

[21] Philip M. Ayoub, David Paternotte, “Europe and LGBT Rights: A Conflicted Relationship”, The Oxford Handbook of Global LGBT and Sexual Diversity Politics (2019): 2.

Picture credit: by Artem Kulinych on pexels.com.

The post The digital euro could be a major boost for European integration first appeared on LSE European Politics.

Dr. Izabella Majcher, Independent Consultant

Photo credit: Shutterstock

*References to the Regulation's provisions reflect the agreed text at the time of writing and may change following legal-linguistic revision

Amid chants of "send them back" from some Members of the European Parliament, the Parliament adopted the EU Return Regulation on 17 June 2026 by 418 votes to 218, with 30 abstentions. Such a broad majority on legislation that would otherwise have been highly divisive was made possible by the European People's Party (EPP)'s alliance with far-right groups, breaking the political firewall traditionally maintained in several Member States. The vote drew criticism from NGOs, academics and journalists, and also prompted concern within the United Nations. Ahead of the vote, nearly 50 current and former international human rights experts issued a joint statement expressing their concerns. Following its adoption, the UN High Commissioner for Human Rights publicly expressed his deep regret.

The parliamentary vote marked the culmination of an exceptionally rapid legislative process. As announced in European Commission President Ursula von der Leyen's Political Guidelines for her second Commission, the Commission presented its proposal for a Return Regulation on 11 March 2025 (discussed here). The Council adopted its position on 8 December 2025 (discussed here), followed by the European Parliament's report on 26 March 2026 (discussed here). The subsequent interinstitutional negotiations progressed at an equal pace, culminating in the final trilogue on 1 June 2026. Once the text has undergone legal-linguistic revision, it will be published in the Official Journal of the European Union. The Regulation will become applicable one year later, replacing the Return Directive, although several provisions—including those on return hubs, preparations for the European Return Order form and readmission procedures—will apply immediately.

Given the political support from right-wing groups and the underlying objective of the proposal of increasing returns, it is unsurprising that the Regulation relies heavily on coercive measures while lowering safeguards across the board. What remains less clear is whether it will actually increase the number of returns, except perhaps at the expense of compliance with international and EU human rights standards. This blog highlights ten aspects of the Regulation that raise particularly serious human rights concerns before offering some concluding reflections.

1)    Return decisions and effective remedy

The Regulation introduces several changes that collectively weaken the assessment of the risk of refoulement. It allows return decisions either to omit the country of return or to designate several possible countries of return. The person need only be informed of the intended country of return sufficiently in advance of removal (Articles 7, 13 and 24). The Regulation also clarifies that Member States are not precluded from issuing a return decision where a hindrance to removal exists; where a risk of refoulement has been identified, removal to the country concerned must simply be postponed. Where the person indicates, or the authorities otherwise become aware, that removal would breach the principle of non-refoulement, the competent authorities must either refer the person to the appropriate procedure, including the asylum procedure, or assess the risk of refoulement themselves. In doing so, they may rely on or take into account any previous assessment of that risk. It is possible that the risk of refoulement is assessed by authorities issuing or enforcing a return decision.

This approach makes the right to an effective remedy all the more important. Compared with the Directive, the Regulation provides greater detail on the applicable standards (Article 26). It requires that the remedy provide for a full examination of both facts and points of law. Where material brought to the attention of the court or tribunal hearing the appeal, as supplemented or clarified through adversarial proceedings, indicates that the principle of non-refoulement may be at risk, the court or tribunal must verify compliance with the obligations arising from that principle. As regards the suspensive effect of appeals, the Regulation does not establish an automatic right to suspension. Instead, it clarifies that Member States must ensure, in full compliance with Article 47 of the Charter, that removal can be suspended before it is carried out (Article 28). Suspension may be granted upon request by the person concerned, unless national law also provides for suspension ex officio.

2)    Mutual recognition of return decisions

Mutual recognition of return decisions is presented as one of the Regulation's key innovations and as a part of the broader "common system for returns" (Article 42). In reality, however, the mechanism is neither new nor straightforward to implement. Under it, a Member State that apprehends a person who has already received a return decision in another Member State may recognise and enforce that decision instead of issuing a new one (Article 9). This is facilitated through a European Return Order—a standard form containing the main elements of the return decision—which is made available to Member States through the Schengen Information System. The mechanism itself is not new. It was already established by a 2001 Council Directive, although it appears to have been used only sparingly in practice. The Commission originally proposed making mutual recognition mandatory, but this approach did not receive the support of the co-legislators. As adopted, the mechanism therefore remains optional. Nevertheless, Member States are required to put in place preparatory measures, and the Commission may submit legislative proposals following an assessment to be carried out within two years of the Regulation becoming applicable. Recognising another Member State's return decision raises both practical and legal challenges. Since the grounds for lawful stay are not harmonised across the EU, a person may be in an irregular situation in one Member State but lawfully present in another. The enforcing Member State may therefore face litigation while also bearing the costs of removal and, where applicable, detention. More fundamentally, mutual recognition of return decisions and entry bans raises proportionality concerns because it exports the most restrictive national approaches across the Union, while no equivalent system exists for the mutual recognition of lawful residence statuses.

3)    Voluntary departure

The Regulation adopts a confusing approach to so-called voluntary departure. Under the Directive, Member States are required to grant a period for voluntary departure of between seven and thirty days, subject to three exceptions: where there is a risk of absconding, where an application for legal stay has been rejected as manifestly unfounded or fraudulent, or where the person poses a risk to public policy, public security or national security (Article 7). The Regulation removes this obligation and instead leaves Member States with a choice between granting a period for voluntary departure and requiring the person to leave immediately (Article 7). Moreover, where a period for voluntary departure is granted, it need no longer be at least seven days. These changes sit uneasily with the EU's broader approach to return, which has consistently favoured voluntary departure over forced removal and has invested considerable resources in assisted voluntary return and reintegration programmes. Indeed, the Regulation itself requires Member States to ensure the availability of return and reintegration programmes, which may be supported or financed by the EU. It further specifies that such programmes should provide a broad ranging assistance and incentives, including reintegration support (Article 46). Voluntary return is generally more conducive to a safe and dignified return and is also in the interest of Member States, given that forced removals are considerably more costly and complex to organise. Arguably, these amendments are intended primarily to signal a more coercive approach rather than to produce a significant change in practice. Even under the Directive, Member States are not required to grant a period for voluntary departure where there is a risk of absconding or concerns relating to public policy or security. Conversely, the Regulation still allows Member States to grant voluntary departure at their discretion, except for persons considered to pose security risks (see more on this category here).

4)    Duties and sanctions

The Regulation establishes an extensive—and at times overlapping—set of obligations for persons subject to return, raising concerns regarding legal certainty and proportionality. It introduces a general duty to cooperate (Article 21), encompassing more than a dozen specific obligations. These include appearing before third-country authorities for the issuance of travel documents or the verification of identity or nationality, and complying with third-country entry requirements, including health-related requirements. The list is open-ended, as it also incorporates obligations provided for under national law.

The Regulation also empowers Member States to impose various restrictive measures, including obligations to remain within a designated geographical area, reside at a specific address, or report periodically to those authorities (Article 23). Under international human rights law, these measures constitute restrictions on freedom of movement. Nevertheless, the Regulation does not require that they be necessary to achieve a legitimate objective. In addition, it introduces a further category of movement restrictions that may be imposed, implicitly, where there is a risk of absconding (Article 23c), including bail and electronic monitoring. Although labelled "alternatives to detention", these measures may also be imposed where detention itself would be unlawful—for example, after the maximum permissible period of detention has expired.

Failure to comply with some of these obligations may be treated as evidence of a risk of absconding, or it may directly justify detention. Other consequences include reductions in social allowances, financial penalties, extensions of entry bans and criminal sanctions, including imprisonment (Article 23b). In practice, almost any person subject to return could fail to comply with one or more of these numerous obligations, thereby exposing them to a cascade of restrictive measures and sanctions. The breadth of this regime falls short of the requirements of necessity and proportionality, leaving considerable scope for arbitrary application.

5)    Investigative measures

At the Council's initiative, the Regulation introduces a new category of so-called "investigative measures" (Article 23a). These measures authorise the authorities, without the person's consent, to search persons subject to return, their homes and other relevant premises, and to seize personal belongings, including electronic devices. The Regulation also permits the use of additional investigative measures provided for under national law. Searches of homes and other premises require either prior judicial authorisation or, where permitted under national law, an administrative order where the search is necessary, proportionate and duly justified by urgency. The Regulation specifies that investigative measures may be used where necessary, proportionate, and duly justified to ensure an effective return. It also requires that they respect fundamental rights and remain subject to the safeguards and remedies available under Union and national law. Nevertheless, the provision raises significant concerns in practice. It may facilitate police raids on homes, shelters and other premises accommodating or supporting people in an irregular situation, potentially relying on racial profiling and creating a climate of fear within migrant communities.

6)    Detention

The Regulation significantly expands the legal framework governing detention, both by broadening the grounds and by increasing its maximum duration (Article 29). Under the Directive, Member States may impose pre-removal detention on two grounds only: where there is a risk of absconding or where the person avoids or hampers the preparation of return (Article 15(1)). Unlike the Directive, the Regulation lays down detailed criteria for determining whether a person poses a risk of absconding (Article 21a). However, these criteria are drafted so broadly that most persons in an irregular situation are likely to satisfy at least one of them and, crucially, many bear little relation to the person's actual propensity to abscond. The Regulation establishes four criteria that give rise to a rebuttable presumption of a risk of absconding, including irregular entry into the territory. It further lists seven additional criteria—including the absence of a reliable address—and permits Member States to rely on criteria laid down in national law to assess the risk of absconding.

In addition to the two detention grounds contained in the Directive, the Regulation adds three further grounds. First, Member States may detain a person considered to pose a security risk, including a threat to public policy, public security, national security or any other security threat identified under national law. This broad ground blurs the distinction between administrative immigration detention and criminal detention. Given that immigration detention affords significantly fewer procedural safeguards than criminal detention, it should remain limited to grounds directly related to the enforcement of removal. Second, detention may be imposed in order to determine or verify a person's identity or nationality. This ground is particularly problematic because such procedures may take considerable time, for example, when a person is stateless, or their identity documents are not recognised. Moreover, detention may be imposed on this ground even in the absence of any risk of absconding. Third, a person may be detained for failing to comply with one of the Regulation's numerous cooperation obligations (discussed above), such as complying with carriers' travel requirements, fulfilling third countries' entry requirements, or complying with electronic monitoring requirements. Fourth, Member States may also rely on detention grounds established under their national law where these are considered necessary to ensure an effective return procedure. Leaving the determination of detention grounds to national law undermines the very objective of harmonising return-related measures across the EU.

The Regulation also dramatically extends the maximum permissible period of detention. Under the Directive, detention may last up to six months and may be extended by a further twelve months where the removal operation is delayed due to a lack of cooperation by the person concerned or the third country. Under the Regulation, the initial detention period may last up to 12 months and may then be extended by a further 12 months on the same grounds, as well as in "exceptional" circumstances provided for under national law. The resulting two-year period may be prolonged by an additional six months where there is a risk of absconding and one of three vaguely defined changes in circumstances gives rise to a reasonable prospect of removal. However, it is difficult to understand why a reasonable prospect of removal would emerge only after a person has already spent two years in detention. Such lengthy periods of detention are manifestly disproportionate and seriously undermine the fundamental right to liberty.

Finally, the Regulation weakens the safeguards requiring migrants to be detained in specialised detention facilities. This approach is at odds with the standards consistently advocated by the UN Working Group on Arbitrary Detention and the European Committee for the Prevention of Torture.

7)    Entry bans

An entry ban is a punitive measure that links return policy with border and visa policy by preventing a person from re-entering the EU through regular channels. The Regulation significantly expands the scope of this measure (Article 10). Under the Directive, an entry ban accompanies a return decision and is mandatory where no period for voluntary departure has been granted or where the person has failed to comply with that period (Article 11). The Regulation introduces the possibility of imposing an entry ban even in the absence of a prior return decision, where a person's irregular stay is detected during exit border checks or where they leave the territory before a return decision has been issued. This new possibility is both disproportionate and highly punitive, as it penalises individuals who are attempting to leave the territory. Moreover, where no formal decision is issued, a person may not even be aware that they are subject to an entry ban and may effectively be deprived of their rights of defence and to an effective remedy. Such an approach sits uneasily with the principles of good administration and legal certainty and creates a significant risk of arbitrary decision-making. The Regulation also doubles the maximum duration of entry bans in ordinary cases, from five to ten years, and allows them to be extended to twenty years where necessary to prevent re-entry. As under the Directive, the duration of an entry ban may nevertheless be reduced, or the ban withdrawn or suspended, in individual cases. In this context, the person's private and family life established in the Member States is a key consideration.

8)    Children

The Regulation introduces several safeguards for unaccompanied children, including the appointment of a guardian, the right to be heard during the return procedure and a review of detention every three months (Articles 20 and 33). At the same time, however, it weakens several of the protections currently provided under the Directive. These include removing schooling from the express grounds for extending the period for voluntary departure, reducing the entitlement to education in detention to the provision of "educational activities", and no longer requiring that assistance be provided to unaccompanied children before a return decision is issued. Crucially, almost all of the Regulation's new intrusive measures—including investigative measures and restrictions on freedom of movement (discussed above) —apply equally to children. Only unaccompanied children are exempt from removal to return hubs; families with children can be subject to this possibility. The Regulation's approach to detention is particularly concerning. Since the adoption of the Directive in 2008, international human rights standards have evolved considerably. The UN Committee on the Rights of the Child and the UN Committee on Migrant Workers, the UN Special Rapporteur on the Human Rights of Migrants, and the UN Working Group on Arbitrary Detention have all recognised that children should never be placed in immigration detention. Rather than reflecting this well-established standard, the Regulation substantially expands both the grounds for detention and its maximum duration, while failing to exclude children from its scope. On balance, the Regulation is likely to have a detrimental impact on children's rights.

9)    Alternatives to return

The Regulation largely ignores the reality that not every person in an irregular situation can be returned. Most notably, it removes the existing option to grant regular status rather than issue a return decision. Under Article 6(4) of the Directive, Member States may grant an autonomous residence permit on compassionate, humanitarian or other grounds to a person in an irregular situation. In such cases, no return decision is issued, or, where one has already been adopted, it must be withdrawn or suspended for the duration of the residence permit. As a result of this deletion, the Regulation no longer recognises any humanitarian or human rights-based exception to the obligation to issue a return decision for every person in an irregular situation. Granting regular status enables individuals to access socio-economic rights and justice, while reducing their vulnerability to exploitation. It is equally in the interest of Member States to ensure that people residing on their territory have a lawful status. Given that Member States already provide a range of humanitarian and compassionate residence permits, a genuinely common return system should also preserve avenues for regularisation, which are intrinsically linked to return policy.

10) Return hubs

One of the Regulation's most significant innovations is the possibility of removing a person to a third country with which they may have no prior connection—a so-called "return hub" (Article 17). This mechanism requires the Member State concerned to conclude an agreement or arrangement with the third country. Notably, that country is not required to satisfy the criteria applicable to safe third countries under the Asylum Procedure Regulation. Instead, the Regulation merely provides that it must respect international human rights standards and principles in accordance with international law, including the principle of non-refoulement. However, it does not specify who is responsible for assessing compliance with these requirements or by which criteria such an assessment should be conducted. Only unaccompanied children are exempt from transfer to return hubs. The concept has attracted interest among some Member States, with Rwanda, Uganda and Uzbekistan reportedly among the countries recently considered as potential locations for return hubs. The Italy–Albania Protocol has undoubtedly served as the model for this mechanism. Yet beyond the serious human rights concerns it raises, the Italian experience has also demonstrated the considerable financial and practical challenges of its implementation. Following several transfers blocked by Italian courts, the compatibility of the arrangement with EU law is yet to be decided by the Court of Justice of the European Union (CJEU) (see here and here). Return hubs have also been considered a form of externalisation of migration governance by the UN Special Rapporteur on the Human Rights of Migrants. The Rapporteur warned that they create a risk of violating the principle of non-refoulement, including chain refoulement, exposing individuals to arbitrary detention and undermining procedural safeguards. As the Rapporteur emphasised, States cannot outsource their human rights obligations and may remain internationally responsible for violations committed in the cooperating third country.

Concluding thoughts

During the negotiations on the Return Directive, a Latin American head of state famously described it as the "Directive of Shame" (Directiva de la Vergüenza). From the perspectives of human rights, proportionality, good faith and, indeed, common sense, the future Return Regulation may well deserve to be regarded as the EU's "Regulation of Shame". As the preceding analysis illustrates, the Regulation creates a significant risk of human rights violations, most notably breaches of the principle of non-refoulement—including chain refoulement—and the prohibition of arbitrary detention. It introduces a range of highly intrusive and coercive measures, even though they are part of administrative migration procedures concerning people who have committed no crime. The Regulation also raises serious concerns regarding legal certainty and the prohibition of arbitrariness by deferring to national law on core aspects of the return procedure, including the grounds for detention, the criteria for establishing a risk of absconding, restrictions on freedom of movement, investigative measures and the consequences of non-compliance. In doing so, it undermines one of its own stated objectives: the harmonisation of return rules across the EU. The Regulation is also unlikely to achieve its central policy objective of increasing the number of returns. There is little evidence that reducing opportunities for regularisation while expanding detention and entry bans will make return systems more effective. On the contrary, greater reliance on detention and reduced use of voluntary return are difficult to reconcile with considerations of financial efficiency, itself a guiding principle of EU law-making.

Reaching agreement on such a coercive text was made possible by Parliament's position. Unlike during the negotiations on the Return Directive between 2005 and 2008, the Parliament did not serve as a counterweight to the positions of the Commission and the Council. Whereas interinstitutional negotiations on the relatively short Directive lasted around nine months, agreement on the considerably longer Regulation was reached after only a handful of trilogues over approximately two months. During the negotiations on the Directive, Parliament was instrumental in preserving and strengthening a number of safeguards. By contrast, its position on the Regulation remained largely aligned with the Council's. The alliance between the EPP and far-right groups secured the necessary majority, but support also came from some centrist and liberal MEPs. This reflects a broader shift in the European political landscape, in which restrictive migration narratives have become increasingly mainstream.

With the Regulation now adopted, much will depend on its implementation and interpretation. National courts and the CJEU will have a crucial role in ensuring that its provisions are applied consistently with Member States' obligations under international law, EU law and domestic constitutional standards. Beyond litigation, financial oversight bodies may increasingly scrutinise expenditure on costly detention systems and return hubs. Given that the Commission's proposal was not accompanied by an impact assessment, independent research will be essential to evaluate whether the Regulation's coercive approach actually increases returns. Investigative journalism and advocacy will likewise remain indispensable in documenting its impact and challenging practices that undermine fundamental rights. Perhaps, ultimately, this legislation—shaped by ideas that only a few years ago remained largely confined to the political margins—will also serve as a reminder that the erosion of rights rarely remains limited to a single group. Once exceptions to fundamental guarantees become normalised, the boundaries of exclusion tend to expand, placing ever more people beyond the protection of the law.

The post The unlikely Europeans – how the threat of Russia won over Eurosceptics first appeared on LSE European Politics.

The post Why mandating and enforcing EU regulation is preferable to a social media ban first appeared on LSE European Politics.

Vitória Menezes Sanhudo (master’s student in European Union Law at the School of Law of the University of Minho)

Over the last decade, the regulatory environment for corporate sustainability in the European Union (EU) has been increasingly reflecting a mindset shift regarding the concept of corporation. The analysis presented here is based on that premise. Despite recent legislative changes resulting from the Omnibus Package, it still seems reasonable to assume that the paradigm of corporate environmental (and social) responsibility in the EU has changed from a shareholder centred approach to a stakeholder-centred and sustainability-oriented approach.

We aim to analyse the ongoing transformation of corporate governance in the EU and the path that appears to be taking shape for the future, while remaining fully aware – against the backdrop of this central issue –, of the changes resulting from the Omnibus Package, which have simplified certain reporting and due diligence obligations regarding sustainability in response to criticism of growing regulatory complexity, mainly deriving from corporations’ limited administrative capacity. The objective is to determine whether the growing integration of sustainability into EU law merely represents increased regulatory density regarding the sustainability of the traditional corporate model or if it signals a structural transformation of the very concept of the commercial corporation towards a model in which sustainability, and perhaps purpose-driven models, assume primacy.

The traditional corporate model

The for-profit business corporation has evolved over time in both its legal and social conception. Nevertheless, during a period that may be broadly defined as extending from the late 1990s and early 2000s until 2014 (with reference to the European legislation to be analysed below), a broad consensus emerged regarding the primacy of the shareholder-oriented model. However, although this deference to shareholders’ interests is not presented as a unilateralist point of view –  detached from the reality in which it operates and solely focused on the goal of generating profit –, it ultimately has that effect. In other words, even if, under any legal system, a business corporation is never viewed as a self-contained entity that exists in complete abstraction from its impacts on society, consideration of its effects on the outside world and on the community is ultimately neglected in the practical conduct of its business activities, causing evident harm.[1]

Henry Hansmann and Reinier Kraakman argue that shareholder primacy represents the culmination of the internal logic of corporate law. In their essay, titled “The End of History for Corporate Law”, the authors offer a reflection on the reasons behind the nearly global triumph of this shareholder-centred view, explaining that, although it is necessary to harmonise the diffuse interests of stakeholders and shareholders, the former should not interfere with corporate law. Rather, these interests should be safeguarded through other areas of law, which, in their view, constitute the most effective means to protect them.[2] Therefore, in the spirit of intellectual honesty, we do not intend to disparage this conception by equating it with a disregard for any interest beyond pure profit, but rather to present it as a viewpoint that argues that shareholders’ interests must be at the centre of management decisions and that directors must be accountable to them. From a more passionate, though measured perspective, Milton Friedman wrote along the same lines, firmly advocating for the separation between the obligations of the state and those of a commercial corporation (a private entity).[3]

Corporate sustainability as an EU regulatory objective

As early as 2001, the Green Paper titled “Promoting a European Framework for Corporate Sustainability Reporting” set the tone, encouraging companies to adopt voluntary practices aimed at reporting their social and environmental performance. The underlying rationale was that companies engaging in such reporting would contribute to broader European environmental and social objectives while demonstrating a responsible commitment to their stakeholders.[4] In 2011, the Commission redefined the concept of corporate social responsibility, stating explicitly that enterprises are responsible for their impacts on society and must meet that responsibility diligently.[5] This approach reinforced the view that such commitments should not merely serve strategic purposes but should form part of the core identity of the business enterprise itself.

The growing urgency of the ecological transition has made it necessary to make deeper commitments. To this end, the EU presented the “Action Plan: Financing Sustainable Growth” (2018, updated in 2021)[6] and the Green Deal (2019), with the latter setting the goal of achieving climate neutrality by 2050 and, in line with the Action Plan, promoting the production of useful information for investors.[7] The objectives set forth in these documents have placed the corporate ecosystem at the centre of the discussion, assigning it a fundamental role on this path towards a truly “green” EU. We recognise the need to create a sustainable social fabric, since people and capital organised in this way emerge as the greatest agents of transformation in society, whether negatively, by using their power to mobilise interests and capital for purely private gain while disregarding everything else, or positively, by harnessing their potential to promote a sustainable economic landscape, with the awareness that the planet and people deserve to be treated as long-term “projects”. Corporations are increasingly and more explicitly taking on an instrumental role in relation to human beings and the environment in which they exist. It is also important to address the study commissioned by the Commission, “Study on Directors’ Duties and Sustainable Corporate Governance” (2020), which laid bare the weaknesses of corporate governance, particularly with regard to practices focused solely on profit and short-term objectives (practices that were still the cornerstone of corporate strategy and that undermined the goals of continuity and sustainability beyond profit).[8] This marked a turning point in raising awareness of the need to increasingly integrate environmental and social considerations.

It was in this context and based on the objectives listed above that several legislative instruments emerged in the EU. Following a chronological order, we will first address the Taxonomy Regulation, in effect since 2020, followed by the Corporate Sustainability Reporting Directive (CSRD), in effect since 2022, and the Corporate Sustainability Due Diligence Directive (CSDDD), in effect since 2024. The Taxonomy Regulation aims to create a sort of dictionary or universal language for understanding the sustainability performance of companies subject to this legislation. This specific regulation defines what constitutes sustainable economic activities; taking this “dictionary” into account, companies must determine, after analysing their own activities,  whether a specific activity is considered sustainable according to those parameters. The CSRD represents a major step forward in the development of sustainability reporting obligations. It requires companies to include detailed, standardised, and comparable sustainability information within their management reports. The Directive substantially expands the scope of the former Non-Financial Reporting Directive, introducing more rigorous reporting standards and subjecting sustainability disclosures to external assurance. 

Ultimately, the central idea behind the Taxonomy Regulation and the CSRD is to redirect capital in the EU toward long-term sustainable activities. Their main objective is to create a reliable information infrastructure. At the same time, these instruments impose significant governance obligations upon corporations and their directors, who must establish the structures and processes necessary to generate the required analyses and disclosures. They function almost like either a “hall of fame” or “hall of shame”, more detailed in the case of the CSRD, which is made available to investors (and the public) so they can allocate their investments in a way that aligns with their values and economic interests. These values and interests have come to be associated with sustainability, not only because consumers themselves have become more demanding in this regard, but also because investors know that by investing in businesses that are in line with the EU’s current and future objectives, they will naturally be increasing their chances of long-term returns and avoiding the risk of economic, financial, and reputational losses due to future non-compliance.

The CSDDD may be regarded as one of the most interventionist legislative instruments adopted in this field, particularly in terms of its impact on internal corporate governance and directors’ responsibilities. It requires companies to identify actual and potential adverse impacts arising from their own operations and throughout their value chains on both human rights and the environment. The Directive’s defining feature lies in the degree of active engagement that it requires. Beyond merely identifying and disclosing adverse impacts, companies must take appropriate measures to prevent, mitigate, and, where necessary, remedy them.[9]

Shareholder primacy has not disappeared, but it has increasingly been tempered by a governance model that accords greater importance to a broader range of stakeholders, including employees, local communities, investors, and the environment, placing sustainability at the centre of corporate decision-making.

Sustainability-oriented corporate models

In this vein, we consider it pertinent to address innovative perspectives in the corporate sphere. In several Member States, new corporate models have been developed that place sustainability at the centre of corporate activity or, at the very least, integrate it into the company’s structure in a comprehensive and essential manner. This section focuses on two prominent examples from Italy and Germany. These models are not the result of EU harmonisation efforts but rather stem from autonomous legislative and market initiatives aimed at proposing alternatives to the traditional shareholder-primacy paradigm.

The first model is the Italian società benefit (SB), introduced by legislation in 2016. Inspired by the American benefit corporation, Law No. 208/2015 established a pioneering framework within the EU that seeks to create a voluntary legal commitment to sustainability. Rather than creating a new corporate form, the legislation introduced a legal status that corporate entities may choose to adopt. The defining feature of the model is the mandatory inclusion, within the company’s corporate purpose, of a dual objective encompassing both profit generation and the pursuit of a specific common benefit or collective interest. The distinction between this model and the general possibility, available in many Member States, lies in the boldness with which it is proposed and drafted, requiring those wishing to become an SB to embrace, at the very core of the company’s identity, objectives that not only guide it but also structurally define it.[10] Naturally, SBs are subject to more stringent duties of transparency, reporting, and accountability than traditional companies. Directors’ duties are correspondingly broadened, at least from a theoretical perspective, as they become linked not only to shareholders’ interests but also to the interests of a broader range of stakeholders. Although these additional obligations may represent an administrative burden, they may also generate reputational benefits and contribute to perceptions of long-term sustainability.[11]

The German model, known as Verantwortungseigentum (responsible ownership) or steward-ownership, represents one of the most innovative developments in the field of sustainable corporate governance. Although it has not yet been recognised as a distinct legal form, various legal arrangements have been used in practice to implement its underlying principles. Whereas the Italian model focuses primarily on the company’s objectives, steward-ownership is centred on ownership structures and control mechanisms. The key actors in this model are the stewards, who function as guardians of the company’s purpose and are selected on the basis of their commitment to that purpose. The fundamental idea is that individual interests cannot undermine the organisation’s mission. This authority is exercised with the objective of advancing the company’s purpose rather than serving the interests traditionally associated with ownership. A central feature of the model is the asset-lock principle, whereby the economic value generated by the company remains attached to the organisation itself and cannot be appropriated for private gain. Profit is regarded primarily as a means of sustaining and advancing the company’s mission. Consequently, profits are generally reinvested, while compensation is provided in proportion to the work performed. This model promotes ways to ensure the continuity of the mission even as stewards and shareholders change.[12]^/[13]

Future outlook: a European corporate ecosystem centred on sustainability and “purpose-driven” corporations?

The legislative transformation that has taken place within the EU over the past decade reflects a clear movement towards the protection of collective interests such as environmental sustainability and human rights. Corporations have been placed at the centre of this process because of the significant impact they can have on these issues.

Although the legislative measures discussed above may initially appear to consist primarily of reporting obligations, classification requirements, and due diligence duties, they have arguably contributed to a deeper transformation in the understanding of the business corporation itself. The obligations imposed on companies require not only the development of sophisticated compliance systems, human resources, and technological capabilities, but also the adoption of concrete measures to address and mitigate identified sustainability risks and adverse impacts.

As a result, the corporation can no longer be viewed merely as a vehicle for pursuing private interests while satisfying minimum legal requirements. Instead, it increasingly appears as an organisation expected to contribute actively to environmental sustainability and the protection of human rights. In this sense, the concept of corporate interest has evolved and acquired a broader social dimension.

To fulfil one of the objectives outlined at the beginning of this study, it is necessary to consider whether a connection may be drawn between the EU sustainability framework and the alternative corporate models currently being developed in certain Member States. The question therefore arises whether the EU is moving, or should move, towards the creation of a European corporate form or legal status comparable to the Italian società benefit or the German steward-ownership model.

From a critical perspective, one of the principal strengths of these models lies in the fact that they create a corporate identity intrinsically linked to sustainability. Such an identity may possess considerable reputational value and may influence the decisions of consumers and investors. In other words, these models provide a formal legal framework through which companies can credibly signal their commitment to sustainability. Nevertheless, it may also be argued that the practical benefits of introducing such models at EU level would be limited, given the extensive body of sustainability legislation that already applies to corporate governance.[14]

There is also a practical consideration that calls into question the desirability of introducing such models at present. The amendments proposed through the Omnibus Package, particularly those affecting the CSRD, the CSDDD, and the Taxonomy Regulation, reflect concerns that the regulatory burden imposed upon companies had become excessively demanding. The reforms were largely motivated by the conclusion that many companies lacked the organisational capacity necessary to comply effectively with the growing number of sustainability obligations.

Against this background, it is legitimate to ask whether companies that struggle to comply with external regulatory obligations would be prepared to embrace more profound organisational transformations involving changes to their corporate identity and governance structures, which would likely generate additional compliance requirements. Nevertheless, this possibility should not be dismissed. These models may serve as valuable sources of inspiration for future developments in corporate law and may encourage companies to pursue specific public-interest objectives that reflect broader social needs. Whether the EU should or will eventually move in this direction remains an open question.

Conclusion

The evolution of corporate governance within the EU demonstrates that sustainability has evolved from a largely voluntary and peripheral concern into a value strongly protected and promoted by law. Through the introduction of legal obligations relating to transparency, due diligence, and the management of environmental and social impacts, companies have been required to adapt their governance structures and decision-making processes in ways that give greater consideration to a broader range of stakeholders. These developments have altered both the regulatory environment in which companies operate and the very understanding of corporate interest, contributing to the growing centrality of sustainability within corporate governance. At the same time, examples such as the Italian società benefit and the German steward-ownership model demonstrate that some companies have already made sustainability a defining element of their organisational identity and purpose. Nevertheless, there is currently little evidence that the EU intends to establish a specific European corporate form or legal status based on these models. Even so, the increasing importance of sustainability and the emergence of innovative governance structures suggest that the debate concerning purpose-driven and sustainability-oriented corporate forms is likely to play an important role in the future development of European corporate law.

Despite the adjustments introduced by the Omnibus Package, it can be concluded that, as of 2025, the paradigm of corporate sustainability within the EU remains firmly established and continues to evolve. The simplification of existing obligations does not signal a retreat from the Union’s commitment to sustainability; rather, it reflects an effort to ensure that those objectives remain both effective and achievable while preserving sustainability as a central concern of corporate governance.

[1] Beate Sjåfjell, “Reforming EU company law to secure the future of European business,” European Company and Financial Law Review 18, no. 2 (2021): 205–206, https://doi.org/10.1515/ecfr-2021-0009.

[2] Henry Hansmann and Reinier Kraakman, The end of history for corporate law, Yale Law School Program for Studies in Law, Economics, and Public Policy Working Paper No. 235 (January 2000), 1–7, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=204528.

[3] Milton Friedman, “The social responsibility of business is to increase its profits,” The New York Times Magazine, September 13, 1970, https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html.

[4] European Commission, Promoting a European framework for corporate social responsibility: green paper (Brussels: Commission of the European Communities, 2001), 4–6, https://ec.europa.eu/commission/presscorner/api/files/document/print/en/doc_01_9/DOC_01_9_EN.pdf.

[5] European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: a renewed EU Strategy 2011–14 for corporate social responsibility, COM(2011) 681 final (Brussels, 25 October 2011), 6.

[6] European Commission, Communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions: action plan: financing sustainable growth, COM(2018) 97 final (Brussels, 8 March 2018), 1–5, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018DC0097.

[7] European Commission, 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: The European Green Deal COM(2019) 640 final (Brussels, 2019), 6, https://eur-lex.europa.eu/legal-content/PT/ALL/?uri=CELEX:52019DC0640.

[8] European Commission, Study on directors’ duties and sustainable corporate governance (Luxembourg: Publications Office of the European Union, 2020), https://op.europa.eu/en/publication-detail/-/publication/e47928a2-d20b-11ea-adf7-01aa75ed71a1.

[9] Nicolas Bueno, Nadia Bernaz, Gabrielle Holly and Olga Martin-Ortega, “The EU Directive on Corporate Sustainability Due Diligence (CSDDD): the final political compromise,” Business and Human Rights Journal 9, no. 2 (2024): 294–298, https://doi.org/10.1017/bhj.2024.10.

[10] Marco Speranzin, “Benefit legal entities in Italy: an overview,” European Company Law Journal 19, no. 5 (2022): 142–145, https://www.research.unipd.it/bitstream/11577/3455954/1/EUCL_19_0504.pdf.

[11] Guido Ferrarini and Shanshan Zhu, “Is there a role for benefit corporations in the new sustainable governance framework?”, ECGI Law Working Paper No. 588/2021 (2021), 8–10, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3869696.

[12] Purpose Foundation, Steward-ownership: a short guidebook to legal frameworks (1st ed., 2020), 6–9, https://purpose-economy.org/content/uploads/purpose-guidebook-for-lawyers10022021.pdf.

[13] Marvin Reiff, “Steward ownership, wealth inequality, and LPE,” Verfassungsblog, 10 October 2024, https://doi.org/10.59704/8e5a5a823184a804.

[14] Ferrarini and Zhu, “Is there a role for benefit corporations in the new sustainable governance framework?,” 23–24.

Picture credit: by Alena Koval on pexels.com.

The post Why decisive military victories are increasingly difficult to achieve first appeared on LSE European Politics.

The post Despite Trump, Europeans still like Americans – but the window of opportunity may be closing first appeared on LSE European Politics.

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?  

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. 

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). Having said that, the Commission’s proposal can fairly be criticised for failure to make any specific reference to the possibility of applying for international protection instead.

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.

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.

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 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. This route to temporary protection 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 temporary 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.

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.

The post The challenge with climate action is not about the maths – it is about the politics first appeared on LSE European Politics.

By the Editorial Team

The recently released Special Eurobarometer on the Digital Decade 2026 offers an insightful view into the hopes and concerns of European citizens regarding the digital transformation. A large majority of Europeans (73%) believe that the digitalisation of daily public and private services is making their lives easier or much easier. An even wider majority (79%) consider that digital policy should be a high or very high priority for the EU. The EU also gets passing marks on the protection of digital rights, with about 51% of respondents stating that the EU protects their digital rights fairly well (46%) or very well (5%). Satisfaction is, however, not unanimous with a statistically relevant 37% of respondents arguing that the EU does not protect their rights very well (30%) or not well at all (7%).

Artificial Intelligence (“AI”) is a growing presence in the daily lives of Europeans. Currently, 43% are using it at least once a week in their personal life and 39% in their work and studies. Most respondents also report increases in use. Without prejudice, important concerns are still present and to achieve a successful integration of AI in the economy without hindering fundamental rights, they need to be addressed. 78% of citizens consider that AI should be developed in an environmentally friendly way and, in fact, 20% even cite environmental impacts as a key barrier to AI adoption. Privacy and data protection concerns (39%), along with concerns about accuracy and incorrect information (36%) and ethical issues (32%), are the most cited barriers to AI adoption. Labour-related concerns are also very much on top of Europeans’ minds with 28% citing potential job losses due to generative AI and 27% lack of training or skills. Europeans are also largely unwilling to sacrifice safety for AI development, with an overwhelming majority (80%) saying that “the development of AI should be carefully regulated to ensure safety, even if this means that AI developers face some constraints”.

With this in mind, the current issue of UNIO appears to reflect the concerns of EU citizens, including articles on AI, data protection, environmental issues, labour rights, and the rule of law.

The first contribution to this issue of UNIO, by Mafalda Miranda Barbosa – entitled “Forbidden uses of AI and liability” –, addresses the interplay between Article 5 of the AI Act prohibiting certain AI practices that are incompatible with the fundamental values of the EU and liability rules, in particular in what concerns wrongfulness, fault and causation.

Our second contribution, by José Vegar Velho, entitled “European Works Councils: normative evolution and challenges of the new Directive (EU) 2025/2450 of the European Parliament and of the Council”, assesses the interplay between Articles 77 and 78 GDPR, with regard to the right to lodge a complaint and to obtain effective judicial remedy against a supervisory authority, Article 79 regarding the right to obtain effective judicial remedy against a controller or processor with the principle of effective judicial protection, and the right to a fair trial, particularly in what relates to the relationship between the judicial and administrative tracks of the proceedings.

The third contribution, by Ana Cardoso and Simone Minelli Teixeira – “The European Green Deal – a portrait of a “green Europe” in a changing geopolitical landscape” –, aims to assess how changes in the geopolitical landscape affect the implementation of the European Green Deal – which has taken a back seat in recent public discourse –, paying particular attention to the influence of the Omnibus Packages in this context. As the authors explain, although there is a drive to develop policies geared towards competitiveness and to adopt urgent measures, it is imperative that effective policymaking remains consistent with the Union’s values and can be reconciled with its sustainability commitments.

The fourth contribution, a co-authorship by Mônia Clarissa Leal and Camila Lopes Martins entitled “Algorithmic discrimination and the criteria for special protection of structurally discriminated groups: an analysis under the Brazilian General Data Protection Law and the European Union General Data Protection Regulation”, presents an analysis of the relationship between algorithmic discrimination and structural discrimination – with a focus on the treatment of structurally discriminated groups – and how these phenomena are regulated by the Brazilian General Data Protection Law and the EU’s General Data Protection Regulation.

Our fifth contribution, authored by Gonçalo Matos – “Defending the Rule of Law in the European Union: the role of the infringement procedure” –, examines the relevance of the infringement procedure as an effective judicial means of addressing the negative consequences arising from the backsliding of the Rule of Law in the EU. Such an analysis is particularly relevant in light of current developments plaguing Europe – which the author explores –, indicating a rise in the prominence of illiberal political movements within Member States that threaten to undermine the values upon which the Union is founded.

The final contribution, entitled “Generative AI – challenges for trade mark law”, is authored by Maria Miguel Carvalho and, as the title suggests, seeks to examine the regulatory challenges that generative artificial intelligence (GenAI) presents for European trade mark law. Drawing on relevant and recent case law on the subject, particularly in the UK and the US, the author investigates how trade mark legislation was not originally designed to tackle the new reality that GenAI presents for trade mark law, highlighting the importance of reinterpreting existing legislation or even introducing amendments to overcome the legal uncertainty arising from it.

The post Green foreign investment must be integrated into Europe’s clean industrial policy first appeared on LSE European Politics.

Dr Eleni Frantziou, Associate Professor in Public Law and Human Rights, Durham Law School, and Dr Sylvia de Mars, Reader in Transnational Public Law, Newcastle Law School

Photo credit: Samuel Lennox, via Wikimedia Commons

Introduction

Is there anything left to say on the direct effect of EU law? Yes, according to the UK Supreme Court, which handed down its much-awaited judgment in Dillon et al on 7 May 2026. The UK reference above is not a typo: despite Brexit, aspects of the EU/UK Withdrawal Agreement (‘WA’) have direct effect under the conditions provided for in EU law, in line with Article 4 WA. In Dillon, the UK Supreme Court was asked to interpret whether one provision of this agreement – Article 2(1) of the Ireland/NI Protocol (‘Protocol’), which is itself a core part of the WA (Article 182 WA) – is directly effective and, if so, on what terms.

The case concerned the Legacy (Troubles and Reconciliation) Act 2023, which set out a broad range of immunities for serious crimes committed in Northern Ireland during the Troubles. The principal claimants were one direct victim and three relatives of victims killed in the conflict – a wife, mother and sister who, as O’Donoghue observes, were but minimally acknowledged by the UKSC. They challenged the immunities provisions of the Act under the ECHR and EU law.

In this post, we focus only on the EU law dimensions of the case and, particularly, on the question of direct effect. In our view, Dillon raises significant questions about the correct application of the direct effect conditions, the ultimate arbiter of which is the CJEU. In particular, we argue that the UKSC’s interpretation of direct effect in Dillon is inconsistent with EU law, because it creates an unprecedented requirement of ‘double direct effect’: it applies the direct effect conditions to both a provision of the Withdrawal Agreement/Protocol and to measures referenced in this provision.

Why was EU law still relevant in Dillon in 2026?

One of the most contentious aspects of the Withdrawal Agreement negotiations was the status of Northern Ireland. It is widely documented that EU membership was one of the principal catalysts for the Belfast/Good Friday Agreement (‘BGFA’) that officially marked the end of the Northern Ireland conflict known as ‘the Troubles’. As EU membership by both the UK and Ireland had ensured free movement between the Irish north and south, the creation of special arrangements that secured this after Brexit was a crucial aspect of the UK’s exit negotiations.

These special arrangements were embedded into the Ireland/NI Protocol (as of 2023 also known as the ‘Windsor Framework’ in the UK), which was appended to the Withdrawal Agreement as a core part of it dealing with a specific ‘withdrawal’ issue.  The Protocol provides for continued north/south cooperation, avoiding a hard border and protecting both trade and cross-border work. Importantly for the purposes of the Dillon case, the Protocol also notes in recital 7 of its Preamble that ‘Union law has provided a supporting framework for the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement’ (‘RSEO’) and includes a specific non-regression guarantee with respect to this part of the BGFA. To this end, Article 2(1) of the Protocol provides:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the Belfast/Good Friday Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

It was this article of the Protocol that formed the basis of the EU law claim in Dillon. The claimants’ argument went as follows: since the UK had been subject to the Victims’ Rights Directive (‘VRD’) before Brexit and this had been implemented in NI through domestic measures, the immunities created by the Legacy Act reduced the level of protection of fundamental rights available during the UK’s membership of the EU, and were therefore in conflict with Article 2 of the NI Protocol. This claim was made possible by Article 4(1) WA, which states that the “Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States” and the test for individuals to rely on a provision of the Withdrawal Agreement before domestic courts is that such a provision should “meet the conditions for direct effect under Union law.”

In line with the widely known Van Gend en Loos formula, a provision of EU law has direct effect if it confers rights to individuals that are clear, precise, and unconditional, rather than being subject to the adoption of further measures by either Member States or the EU.  The wording of Article 2(1) of the Protocol prima facie meets these conditions with ease. The right conferred by Article 2(1) is to not have ‘rights, safeguards or equality of opportunity’ as set out in the BGFA and in Annex 1 of the Protocol diminished. This paragraph contains a ‘textbook’ negative obligation. It requires no further measures at all – the UK simply needs to refrain from introducing new measures that reduce the level of protection of EU fundamental rights as it stood on 31 December 2020.

The claimants consequently argued that, since Article 4 WA also provides for the Agreement to have primacy and, at paragraph 2, requires that domestic courts be capable of disapplying incompatible provisions, the immunity provisions of the Legacy Act had to be disapplied. Two courts in Northern Ireland had found for the claimants, disapplying the offending provisions – but the government challenged this on appeal to the UKSC. It argued that if Article 2 was to have direct effect, it could only do so by reference to obligations that were themselves clear, precise and unconditional.

The Supreme Court sided with the government. It found that Article 2 could not always have direct effect, but only under certain circumstances, namely when the measures cross-referenced in Article 2 were themselves directly effective.  It is worth setting out its reasoning in some detail.

The UKSC commences, at paragraph 112, by citing the so-called Demirel test.  Demirel is one of the early cases in which the CJEU considered whether provisions in bilateral agreements signed by the EU could have direct effect; and it found at paragraph 14 that:

…a provision in an agreement concluded by the European Union with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in

its implementation or effects, to the adoption of any subsequent measure... (emphasis added)

So far, so good.  While, as we discuss further below, the treatment of the Withdrawal Agreement (or Protocol) as part of ordinary EU external relations law is questionable, this does reflect the commonly used test for evaluating the direct effect of bilateral agreements involving the EU.

However, the UKSC proceeds with the following statement in paragraph 113:

The obligation imposed on the United Kingdom by article 2(1) of the Windsor

Framework relates to rights, safeguards or equality of opportunity “as set out in” the RSEO chapter. It is therefore necessary to consider whether, having regard to the wording and to the purpose and nature of the RSEO chapter and of article 2(1) of the Windsor Framework, those provisions read together impose a clear and precise obligation which satisfies the test for direct effect.

In our view, the words “therefore necessary” make a huge argumentative leap, hitherto unseen in any EU law treatment of direct effect. In this single short paragraph, the CJEU takes the Demirel test but applies it simultaneously to the Withdrawal Agreement and its provisions and the BGFA’s RSEO chapter’s provisions. In other words, the UKSC reasons that Article 2 of the Protocol cannot have direct effect as such: for it to be directly effective, anything it references must also be directly effective.  This leads to its even more confounding finding, which is – ultimately – that Article 2 of the Protocol sometimes has direct effect – but at other times it does not. This is because, according to the UKSC, it is impossible to identify a clear and precise obligation without reference to the RSEO chapter. As the UKSC puts it at paragraph 116, “[i]t is only in this way that the obligation not to diminish rights, safeguards or equality of opportunity acquires any content.”

This aspect of the ruling – which we dub ‘double direct effect’ –presents a deep challenge to settled understandings of the direct effect of EU law.

The fallacy of the UKSC’s direct effect

The UKSC’s ruling does not question the possibility of Article 2 of the Protocol to have direct effect, nor does it challenge the terms of direct effect. According to the Court, as per paragraph 112, the relevant conditions are the conditions set out in EU law. But the choice of EU law is already telling of the ruling’s direction and tone: rather than going straight for the Van Gend en Loos conditions, the Court refers to the Demirel test on the direct effect of international agreements.

While this choice is defensible to a degree as the WA is, after all, a bilateral agreement, the confidence with which the UKSC resorts to it is puzzling. Unlike association agreements, such as the one between the EU and Turkey at stake in Demirel, or even the UK/EU Trade and Cooperation Agreement, EU competence for which resides in external relations law (Article 217 TFEU), the Withdrawal Agreement is a very specific type of agreement. The competence to conclude it is found in the constitutional part of the Treaty on European Union – Article 50 TEU – and it is Article 50 (2) that sets out that the terms of withdrawal are to be negotiated in accordance with Article 218(3) TFEU. The Withdrawal Agreement is thus a category in its own right: it is not about a third state negotiating the terms of its association with the EU, however deep, but about a Member State negotiating its departure from the bloc in line with its own constitutional requirements, as set out in Article 50 TEU.  The exceptionality of the Withdrawal Agreement has been raised indirectly in litigation before the CJEU and, albeit that the Court has not had specific occasion to address what this means for direct effect, it has emphasised the significance of Article 50 TEU as the essential legal context for analysing the provisions of the Withdrawal Agreement (see, e.g., Préfet du Gers I, para 54). 

But even if we were to accept that the Withdrawal Agreement should be treated just like any other bilateral treaty, its own terms make its ‘intention’ clear, given the express wording of Article 4 WA on the application of the direct effect conditions – a very unusual stipulation that, to our mind, would not go unnoticed by the CJEU. In fact, as Gallo and Labus note, specific exclusions of direct effect are the norm in the external relations context, as is indeed the case for the TCA, Article 5 of which preclude direct reliance by individuals on its provisions. The choice of the Demirel conditions is, therefore, significant for at least two reasons: first, it is important symbolically. The UKSC makes a choice to treat the Withdrawal Agreement as one of many international agreements the UK has signed. This automatically limits any perceived onus on its part to read the ‘purpose and nature’ of the Withdrawal Agreement or the Protocol as resulting in different obligations than other international law. Second, the reliance on the Demirel test and its focus on not only the precision and unconditionality of the relevant provisions, but also the ‘purpose and nature’ of the agreement, enables the UKSC’s further findings about Article 2(1) WA. For, as already highlighted above, rather than treating ‘purpose and nature’ as pertaining to the Withdrawal Agreement and its provisions, the UKSC understands this test as applying to the RSEO section of the BGFA.

The ‘purpose and nature’ of the BGFA is summarised in paragraph 119 as “establishing peace in Northern Ireland after decades of sectarianism and civil conflict”. This reference appears to preclude a reading of the BGFA as aiming to secure cross-community equality in a broader sense, which makes reliance on Article 2 for the purposes of ensuring the non-diminution of EU fundamental rights altogether less likely. It will be far more difficult to link provisions in the RSEO chapter to EU law if it is essential to prove that their purpose and nature was ‘establishing peace’. This focus on the Demirel condition of the nature and purpose of the agreement thus appears to negate, at least to an extent, the practical relevance of Article 2 as a non-regression clause. Rather than protecting the ‘supporting framework’ of fundamental rights that membership of the EU meant for the peace process in tune with the Protocol’s Preamble, the interpretation could prove to be much narrower– a possibility that remains to be fleshed out further in subsequent case law.

Beyond the type of direct effect it chooses, though, the UKSC also commits, in our view, a fundamental, substantive error of EU law in its application of the direct effect conditions. This error rests on the finding that Article 2(1) is a provision that could sometimes, but not always, have direct effect – depending on what else it references. This position does not withstand scrutiny from the perspective of EU law. 

It is trite EU law, including under Demirel, that the direct effect conditions refer to ‘a provision’. Leaving the categorical exclusion of certain forms of direct effect for certain instruments (eg, the horizontal direct effect of directives), the CJEU has never held that a provision can both have and lack direct effect. The test is a clear binary: the provision either meets the conditions and it is directly effective or it does not, and it is not.

In this sense, it may have been more coherent for the UKSC to state that Article 2 is not directly effective at all. That, however, would have created the problem that some of the EU law explicitly referred to in the provision (the Equality directives) are par excellence directly effective obligations. Finding that Article 2(1) lacks direct effect altogether would have created a procedurally awkward situation, whereby the Annex to the Protocol has direct effect and supremacy in accordance with Article 4(1) WA, but its ‘activating’ provision does not. It was also clear that the provision was thought to have direct effect when negotiated and the UK government did not challenge the right of individuals to invoke it with respect to the annexed Directives; while the UKSC made it clear that UK government interpretations of its own commitments made when concluding the WA were of no help in determining of Art 2 of the Protocol was directly effective (see paragraphs 123-124 of the judgment), it seems to have wanted to avoid making the existence of that Annex 1 and, indeed, Article 2 itself wholly pointless from a litigation perspective. Hence, the UKSC resorts to a half-way house: if the provisions against which non-diminution is sought are themselves directly effective, then Article 2 can be invoked before domestic courts. If they are not, it cannot. Much like Schrödinger’s cat, then, direct effect is simultaneously alive and dead – it all depends on what Article 2 is referencing. 

This reasoning in our view misunderstands (though it does not reference) CJEU case law on the direct effect of provisions that also refer to other provisions, as well as the nature of the direct effect conditions as interpreted in EU law, more generally. For example, Charter provisions regularly give ‘specific expression’ to non-directly effective measures of directives (see, eg, the Grand Chamber rulings in Egenberger, Braathens,  KL v X). Unlike the approach espoused by the UKSC, it is not the non-directly effective measures detailing the core obligation that suddenly acquire direct effect. Rather, the presence of a directly effective measure, such as Art 47 CFR, makes the more specific obligations listed in the directives invocable in court, where they otherwise would not be. The core obligation is directly effective regardless of what it cross-references. The CJEU makes this very clear in Egenberger:

78. [L]ike Article 21 of the Charter, Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such [emphasis added].

In other words: it is the more general provision of primary law – Article 47 of the Charter – that gives rise to a clear, precise and unconditional obligation. This does not require a cross-reference to a separate provision that is also directly effective in order to be relied upon. Rather, the only effect of the directives in the above cases is to show that the scope of EU law – and hence the relevant provision of the Charter – was engaged.

We found similar reasoning in CJEU judgments that involve international agreements, where the cross-referencing to Annexes and Protocols is very common. In Sevince, for instance, concerning the EEC-Turkey Association Agreement, the CJEU found in paragraph 22 that provisions in several decisions adopted under this association agreement had direct effect – and that this

cannot be affected by the fact that [other provisions] provide that the procedures for applying the rights conferred onto Turkish workers are to be established under national rules. Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant to Turkish workers. (emphasis added) 

The analogy is, in our view, powerful: similarly to Article 2, this case concerned a standstill obligation that no further obstacles to the free movement of workers be imposed. Moreover, like Article 2, there was an expectation that national procedures would be introduced to ensure the effectiveness of this core obligation. The CJEU clearly distinguished this procedural conditionality from the primary negative duty. 

The idea that the ‘referred-to’ provisions do not themselves have to be directly effective for a primary provision to be directly effective is also expressly confirmed in the 2022 ruling in Deutsche Umwelthilfe, which concerned standing requirements in the implementation of the Aarhus Convention. The CJEU’s reasoning is worth citing in some detail:

66. [W]hile it is true that Article 9(3) of the Aarhus Convention does not have direct effect in EU law and cannot, therefore, be relied on, as such, in a dispute falling within the scope of EU law, in order to disapply a provision of national law which is contrary to it, the fact remains that, first, the primacy of international agreements concluded by the European Union requires that national law be interpreted, to the fullest extent possible, in accordance with the requirements of those agreements and, secondly, that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law...

          …

78. … the discretion conferred on the Member States to lay down rules governing the right to bring proceedings, referred to in [Article 9(3) of the Aarhus Convention], does not affect their obligation to ensure a right to an effective remedy enshrined in Article 47 of the Charter, as, moreover, also alluded to in Article 9(4) of the Aarhus Convention. Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such … Thus, that article may be relied on as a limit on the discretion left to the Member States under Article 9(3) of the Aarhus Convention.

This case is also analogous to what the UKSC had to consider in Dillon: a primary provision that set out a clear, precise and unconditional right (Article 47 of the Charter) – and further provisions, covering more specific situations in which such a right might apply, which are not directly effective (in Article 9(3) of the Aarhus Convention).  The CJEU had every opportunity to set out that both Article 9(3) of the Aarhus Convention and Article 47 of the Charter had to be directly effective, but did not do so – instead, it stressed that Article 47 sets out framework conditions for how a conditional, imprecise referred provision had to function.  This is in our view similar to the function that Article 2 of the Protocol carries out: it sets out the conditions that apply once the RSEO and Annex 1 directives need to be considered, in the form of setting a non-diminution test.

Finally, the UKSC’s understanding of the core negative obligation in Article 2 as vacuous without a contemporaneous assessment of the RSEO sets too high a threshold for clarity and precision. If this was how its reasoning worked, the CJEU would have denied the direct effect of most provisions of EU primary law. To take one iconic example, it clearly would have declined to accept the direct effect of Article 157 TFEU in Defrenne back in 1976; as Daniele Gallo puts it, “[t]he contents of the obligation of [what is now Article 157 TFEU] were considered sufficiently clear, to the extent that the Member States must ensure ‘the application of the principle that men and women should receive equal pay for equal work’, despite … that there was, at the time, relative uncertainty about the concept of ‘equal work’ as well as that of ‘work of equal value’.  (Gallo, OUP 2025, 83).

To summarise, the RSEO determines the scope of Article 2 and it is squarely for the Supreme Court to interpret what this means. As noted above, there may be disagreement about how narrowly the ambit of the RSEO was drawn in this ruling – disagreement which can be further discussed in the Specialised Committee on the Windsor Framework. Such disagreement, however, would concern the substantive question of diminution (i.e., was there a relevant RSEO right that has now been diminished?) – and not the relevant test for direct effect. As a matter of the direct effect conditions, there can be little doubt, based on CJEU authority on direct effect, that Article 2 can be invoked before domestic court. In turn, if disagreement arises about the direct effect conditions, the correct interpretation must be determined by the CJEU – a point to which we now turn, in concluding.

Is this the final word on the direct effect of Article 2 NIP?

Assuming that our analysis is correct, and that the application of the direct effect conditions in Dillon is inaccurate, can anything be done about it? The UKSC was not entitled to make a reference to the CJEU on the matter of direct effect, as this is not provided for under this part of the Protocol. While references are possible with regard to a limited number of other provisions, primarily relating to trade, they are not provided for in the context of the non-diminution guarantee. It is to be hoped, however, that the Joint Committee overseeing the WA will discuss these issues in its upcoming meeting, particularly given the significance of the direct effect question for ongoing litigation on Article 2 at lower levels and, more generally, for the very ability of the Dedicated Mechanism set up under the Protocol to contribute to the enforcement of the non-diminution guarantee through litigation.

Arguably, regardless of the outcome of the political discussion, a question should now be put to the CJEU about the correct application of the direct effect criteria by agreement of the parties. The Dillon case demonstrates the technical difficulties associated with ongoing Brexit litigation that involves EU law concepts without the possibility of interpretive clarity through the preliminary reference structure, and it is in nobody’s interest for different versions of a 60 year old test to apply in the EU itself and its closest trading partner. Ultimately, though, if no agreement is reached about what the correct interpretation of the direct effect conditions is in the context of Article 2 within the Joint Committee, an arbitration panel may be appointed to determine the issue. Its decision will be binding on both parties. Crucially, the arbitration panel would be required to make a reference to the CJEU to determine any issues of EU law before it reaches its decision. Undoubtedly, the concept of direct effect would be such an issue.

The post The EU must learn the lessons from FIFA’s ticket pricing at the 2026 World Cup first appeared on LSE European Politics.

The post Is China’s “industrial steamroller” an existential threat to European economies? first appeared on LSE European Politics.

The post How Northern Ireland’s parties navigated Europe before and after Brexit first appeared on LSE European Politics.

The post Beating the heat – why Europe must invest in climate adaptation first appeared on LSE European Politics.

The post The tragedy of Brexit is that Britain was the EU’s most effective member state first appeared on LSE European Politics.

The post What impact has Brexit had on UK universities? first appeared on LSE European Politics.

Lorna Woods, Professor Emerita, University of Essex

Photo credit: TodayTesting.com, via Wikimedia Commons   

This recent CJEU judgment has been flagged in some quarters as upholding the French rules requiring age verification for porn sites. In others, it has been seen as stripping intermediary immunity from social media sites. Based on the e-Commerce Directive, however, is this just a transient discussion, fading away as the Digital Services Act (DSA) becomes the relevant law?

The Facts

The national cases in Case C-188/24 concern French rules requiring porn operators to implement technical age verification mechanisms to prevent minors from accessing those sites.  The companies were each the subject of a formal notice pursuant to Decree No 2021/1306 implementing Law No 2020-936 and Article 227-24 of the Criminal Code which prohibits any person from broadcasting a pornographic message likely to be seen by a minor. The rules in Coyote System concern the restriction on the broadcasting of information to drivers about roadside checks (eg in relation to speed or drunk driving). The relevant implementing measures were also derived from the French criminal code. These measures were subject to judicial challenge before the French Conseil d’État. The companies in question were not established in France and questioned the applicability of the French rules.

The Issues

The first question the CJEU had to address was whether the measures fell within the coordinated field of the  e-Commerce Directive (Directive 2000/31) and would therefore be caught by Article 3, which provides for the country of origin principle (COOP). Recital 22 which states that ‘information society services should be supervised at the source of the activity’. This means that services in general comply with the domestic law of the State in which they are established and do not have to comply with the laws of the States in which their services are capable of being accessed.  Article 3(3) excludes certain areas from the coordinated field and Article 3(4) et seq provide for limited grounds of derogation from the COOP and provide conditions with which the receiving State must comply to access the derogation.   The COOP applies only to laws falling within the coordinated field. Here the relevant laws were not sector specific measures targeting information society services in particular, but the general criminal law. The referring court questioned whether the provisions in issue fell within the coordinated field and referred the issue to the CJEU.

The ban on transmission in Coyote System was, according to the applicant, contravening the prohibition on general monitoring found in Article 15 e-Commerce Directive. This application of this article is dependent on the information society services in question falling within one of the categories of service found in Articles 12-14 e-Commerce Directive (mere conduit, caching services or hosting services respectively). The Court thus then had to consider whether the service in Coyote System was a hosting service within the meaning of Article 14 e-Commerce Directive. Article 14(1) provides:

Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

Judgment

The Coordinated Field

The Court emphasised that the coordinated field

covers all requirements laid down by the legal systems of the Member States relating to the taking up or pursuit of the activity of an information society service, … that definition does not make the coordinated field subject to the condition that only matters harmonised by that directive are covered. [para 52]

Following the Advocate General (at para 56 of his Opinion), it remarked that Article 3 is of particular importance precisely for the areas of law not harmonised. The mere fact that the laws apply generally cannot remove them from the coordinated field. Moreover, the Directive excludes certain areas from the scope of the Directive, so the question of exclusion had been taken into account in the Directive. Taking a different approach would undermine the purpose of the Directive.

The Court confirmed that requiring age verification sets the conditions for access to the information society services and is a requirement concerning the pursuit of an activity within Article 2(h)(i) (see Case C-649/18 A (Advertising and sale of medicinal products online)). For the roadside broadcasts, the Court took the view that the prohibition constituted a requirement relating to the content of the service. Both sets of measures therefore fall within the coordinated field.

The COOP and Derogation

The key question for the application of the COOP was whether the measures restricted the free movement of the services. This question the Court answered in the affirmative before considering whether the derogation in Article 3(4) could be used.

The derogation has substantive and procedural conditions. Substantively, the measure must be necessary in the interests of one of more of: public policy; protection of public health; public security; or protection of consumers. Further, those measures should be taken against an information society service which actually prejudices those objectives or presents a serious and grave risk to those objectives. Finally, the measures must be proportionate to the objectives. In procedural terms, the recipient Member State must first have issued an unsuccessful request to the host Member State to fix the issue and, secondly, notified the Commission.  A failure to comply renders the obligations unenforceable (Case C-390/18 Airbnb Ireland – following long established case law).

General rules applying without distinction do not satisfy the second of the substantive conditions. The rules, however, provided for the issuing of individual notices which satisfy this requirement [para 90]. The third substantive element – that of proportionality – was satisfied in relation to the protection of human dignity and the rights of the child as regards the broadcasting of pornography [para 94] and, without much elaboration, the prohibition on rebroadcasting is also proportionate [para 96]. 

So in principle, the national rules could meet the substantive criteria but it was for the referring court to determine whether the procedural rules were satisfied.

General Monitoring

Hosting

As noted above, the possibility of relying on Article 15 depends on whether the service in issue – here the service in Coyote System - is a host within the scope of Article 14 [see para 105]. The Court noted that the definition of hosting did not automatically preclude a service which also has elements of broadcasting from being a host, referring to long-standing caselaw as well as more recent (Case C-360/10 SABAM; Case C-682/18 YouTube and Cyanado and Case C-401/19 Poland v Parliament and Council). Conversely, just because a service includes the storage of information does it mean that the service is a host for the purposes of Article 14. The Court reiterated the limitations arising from Recital 42 – that the services should be of a mere technical, automatic and passive nature. This implies, according to the Court’s case law (Case C-324/09 L’Oréal and Case C-682/18 YouTube and Cyanado), “the information society service provider has neither knowledge of nor control over the information which is transmitted or stored” [para 108].  The Court underlined that “those two conditions requiring knowledge and control should be understood as being alternative to and independent of each other” [para 110].  The Court then held that

if, beyond the mere categorisation and indexation of information for the purpose of improving its accessibility, the algorithm used determines, in the interest of the operator or its service, under what conditions, how and in which order of priority that information is or is not be broadcast, that operator exercises control over that information, with the result that the service it offers cannot be classified as an ‘information society service … that consists of the storage of information provided by a recipient of the service’ [para 112].

Impact on Article 14(3) and Article 15

If a service exercises control over content, it does not fall within Article 14 and therefore the restrictions imposed on Member States by Article 15 are not applicable to such are service. The questions were for the national court to determine.

On the assumption that the service were found to be neutral, the national court must decide whether the prohibition on rebroadcasting the information on roadside checks is permitted by Article 14(3) which concerns orders requiring a neutral host to terminate any infringement on the part of the recipient of the service due to, inter alia, the presence of illegal information stored on its website or on its platform by removing or blocking access to that information.

Considering Article 15, the Court referred to Recital 47 e-Commerce Directive, which clarifies that Article 15 does not apply to monitoring in specific cases. Referring to the test laid down in Glawischnig-Piesczek (Case C-18/18), paras 46 and 47, the Court noted in this case that the information targeted by the prohibitions “is circumscribed in such a way that its rebroadcasting may be automatically prevented by the operator concerned” [para 121].

Comment

Coordinated Field and COOP

The Court has taken a typical approach here, a broad approach to the areas covered: criminal law rules and public policy rules can fall within the scope of the directive, provided they impose requirements on the access or conduct of an information society service. Furthermore, none of the criminal law in general, public policy and public security measures appear on any of the exclusions from the scope of the directive. The Court’s ruling makes explicit that this absence from the exclusions is deliberate. This position is in the interests of ensuring that a service is not subject to multiple regulation, but it can lead to unevenness and gaps in protection from the viewpoint of a person expecting the rules of the member state in which they reside to apply to services providers providing services in that self-same Member State. This is especially the case when the aspect potentially taking the national rule outside the derogation regime is about its form, not its substance.  The COOP principle has long given rise to concerns about forum shopping and a race to the bottom (as can be seen also in the broadcasting sector and the Audiovisual Media Services Directive) but has been re-affirmed as a central tenet of the EU regime (see eg Case C-769/22 Commission v Hungary (Values of the European Union)). 

It is also worth noting that the Court in principle accepted that both sets of rules in the cases referred were aimed at achieving legitimate aims and were proportionate. The Court drew on the fact that the AVMSD requires age verification in relation to pornography to reach this latter assessment. In so doing, the Court engaged in a joining up the dots activity between different piece of EU digital legislation. 

In this ruling, the Court underlined both the importance of the right to human dignity and the rights of the child.

Impact on Article 14

The headline news from this ruling is the impact on Article 14 and the test for neutral intermediary. The hosting safe harbour in Article 14 was always meant for neutral, passive intermediaries – entities whose activity is “purely technical, automatic and passive”, implying that the provider “has no knowledge of or control over” the information stored (Recital 42 e-Commerce Directive). This has been the standard position since the early case law – for example L’Oreal.  What this means, and in particular the impact of automated tools, has been the subject of some discussion. In a different context (copyright infringement), the Court even if an operator automatically indexes infringing content to recommended videos based on each users’ use did not necessarily mean that the host had specific knowledge of the infringing content, and the Court determined that this sort of specific knowledge was what was required. This could be seen as quite a generous view towards the hosting services and the scope of immunity. It might almost be said that there was an assumption that platforms would benefit from Article 14 (provided they responded to notices). In Coyote there is a shift of focus.

The first point to note is the Court’s statement that hosting services do not automatically benefit from Article 14. While this is not new – and, indeed, can be seen the Court’s previous jurisprudence – the reminder feels significant, especially in the light of the rest of the ruling. The Court here confirmed that a service has to satisfy both the knowledge and the control tests, a point not laboured in previous judgments. The Court (at para 110) makes this really clear: if a service exercises control, even if it has no knowledge, it will fall outside the intermediary immunity provision.

Whereas Cyanado dealt with knowledge, System Coyote looks at control. Significantly, the Court held that algorithmic curation constitutes “control”.  The Court (following its Advocate General) held (para 111):

it is, inter alia, by means of the algorithm used that such an operator exercises control over the information stored. So long as it has predetermined, by means of that algorithm, the conditions under which such information may or may not be broadcast, it is irrelevant that that operator does not itself carry out additional interventions which have the effect of promoting, modifying or deleting information stored with a view to it being broadcast.

In other words, when a service which stores information uses an algorithm to determine – in its own interest or that of its service – under what conditions, in what manner, and in what order of priority information is or is not disseminated it has control (see para 112). It does not matter that this is automatic. So creating the algorithmic system is exercising control.  In focussing on control, the Court avoids outright conflict with its earlier position (for example in Cyanado), but it certainly signals a change in emphasis and (in line with thinking underpinning parts of the DSA) a recognition that the algorithm is not necessarily neutral.

Not all categorisation or prioritising satisfies the control test. Simple categorisation and indexing of information to improve its accessibility do not on their own constitute control. Essentially, the Court is trying to draw the line between a neutral index, or chronological feed, and something more editorial (and it is telling to remember that the services themselves have claimed first amendment rights – is relating to their speech – in relation to how results are provided). 

Nonetheless, this ruling will affect a wide range of services based on curating user generated content, from social networks, video-sharing services and – of course – services that rebroadcast user reports (eg about police checks), as well as recommended products on a marketplace. The judgment could be read as stripping most (if not all) of the large social media platforms of their immunity (though this does not mean they will automatically be liable in all cases – that will depend on national law and the facts in individual cases). It could also be said to follow a similar path to the Russmedia decision (Case C-492/23), discussed here, which also took a narrow view of immunity (hosting defence does not apply to liability under the GDPR).

Impact on Article 15

The prohibition on general monitoring only relates to those services covered by intermediary immunity. Although this follows the language of Article 15(1) there had been some dispute as to who could claim the protection of Article 15. The answer is now clear: fall outside Article 14 (or 12 or 13) and Article 15 does not apply. 

The Court also reiterates its position on the distinction between general and specific monitoring and highlighting the possibility of using automated techniques to identify particular types of content. This could be relevant for Member States’ ability to impose monitoring or filtering obligations (in services of some public interest) – these (in relation to copyright infringements, e.g. SABAM, above) had been thought problematic in the relatively early days of the e-Commerce Directive, and platforms have often challenged such obligations as constituting general monitoring. The Court’s discussion here is focussed tightly on content; it does not discuss behavioural monitoring or profiling (which might be techniques by services to reduce the incidence of illegal content or behaviour across their services). It will be interesting to see how this line of case law joins up with the jurisprudence under the e-Privacy directive on collection of metadata and intrusions into communications privacy (see eg Case C-746/18 Prokurator).

Impact on DSA

Article 6 DSA, which replaces Article 14 e-Commerce Directive, provides that hosting providers are not liable for information stored at the request of a recipient of the service, provided that they do not have actual knowledge of illegal activity or content, unless the recipient acts under the authority  “or control” of the provider. It has been assumed given the similarity in the text, that the case law on Article 14 is relevant for understanding Article 6 DSA, including as regards the threshold condition of neutral. The wording of the relevant recitals in the DSA differ, however, from the text in the e-Commerce Directive (noted above) – and the Court has relied heavily on that text in its interpretation of Article 14.  Indeed, Article 14 itself does not refer to control. Recital 22 DSA specifies:

[i]n order to benefit from the exemption from liability for hosting services, the provider should, upon obtaining actual knowledge or awareness of illegal activities or illegal content, act expeditiously to remove or to disable access to that content. … The provider can obtain such actual knowledge or awareness of the illegal nature of the content, inter alia, through its own-initiative investigations or through notices submitted to it by individuals or entities in accordance with this Regulation in so far as such notices are sufficiently substantiated to allow a diligent economic operator to reasonably identify, assess and, where appropriate, act against the illegal content. However, such actual knowledge or awareness cannot be considered to be obtained solely on the ground that the provider is aware, in a general sense, of the fact that its service is also used to store illegal content. Furthermore, the fact that the provider automatically indexes information uploaded to its service, that it has a search function or that it recommends information on the basis of profiles or preferences of the recipients of the service is not a sufficient ground for considering that provider to have ‘specific’ knowledge of illegal activities carried out on that platform or of illegal content stored on it. [emphasis added]

At first glance, the recital seems to contradict the ruling in Coyote System. The wording of the recital seems to follow the approach the Court adopted in Cyanado and like that judgment deals with the question of knowledge. We have noted earlier, the Court’s sidestep in this case, to talk about control. The recital says nothing about control and is therefore not inconsistent with the approach in Coyote System.  Of course, this means that there is no reference to “control” in the text of the DSA because Article 6, like its predecessor Article 14, is silent on the point. It is far from clear, however, that the change in wording in the recital was intended to mark a change in meaning from Article 14 resulting in an expansion of the scope of immunity. Rather it seems an intention to align the DSA with the case law on Article 14 e-Commerce Directive. Presumably, there will be much litigation on this point as well as the linked question as to where the boundary between control and “mere categorisation and indexation of information” [para 112].

Gabriel Real Ferrer (Professor Emeritus from the University of Alicante)

From a technical-legal point of view, we could reflect on the extraordinary changes that lie ahead for the law over the next 20 or 30 years. We could discuss hybrid sovereignty, the transition from a rule-based law to a principle-based law, the need to move from a reactive to a proactive law, or the emergence of transnational law and sustainability as a new paradigm. We are undoubtedly moving towards a legal system which is vastly different from the one we have been teaching.

From a very personal perspective, I would prefer that we take a few moments to rethink our profession of teaching the law, which is so valuable to the world. Let us reflect on how we use our knowledge and on what society hopes we will achieve. It is obvious that society expects us to train good professionals who go on to have successful careers, but, in my view, our responsibility goes far beyond that.

Given the state of the world – the wars, the decline of democracy and human rights, and the obvious erosion of the values on which we have based our civilisation – I believe we must look up and ask ourselves about our impact on global society. Indeed, our knowledge as legal professionals is not neutral; it conveys values and carries an indisputable ethical and moral responsibility to guide society. That said, the question arises: are we doing the right thing? Is this what we are instilling in our students? Are we failing?

When my children asked me what I did for a living, I told them that I was a law professor, and that I was teaching the path to justice, which would help build a better, fairer world. I believed, and still sincerely believe, that this is our primary mission: to train lawyers who will improve the world, who do not see the law as a mechanism of oppression by the rich against the poor, or by the powerful against the disadvantaged, but as the most powerful tool for social progress and the advancement of civilisation. This progress is founded on solidarity and social justice, on understanding and tolerance. We have trained legions of lawyers, yet the world seems to be heading towards a moral abyss.

As my mentor, Ramón Martín Mateo, used to say, legal professionals – that is, both us and our students – are social engineers: we design institutions and lay down the rules of society through legislation. Do we not know how to do better?

Now, I dread looking into the eyes of my children and grandchildren and sensing a burning question: “Where is that world you promised us, the one you worked towards?” All they see is a future of war and plastic. I did not lie to them, but we have collectively failed.

We can adopt different attitudes towards the news that reaches us every day. Personally, I can only offer my own: that of the “melancholic optimist”. The concept stems from the poetry of Luis García Montero and was popularised in Spain by the actor José Sacristan, but it is well on the way to becoming a collective attitude. Melancholy alludes to a sense of loss and an awareness of one’s own mortality: the values we once believed in have been lost, many hopes have been dashed, friends and mentors are gone, and I have little left in this world. Yet, despite this, I remain optimistic; every day I continue to fight for dignity – my own and that of others. I continue to believe in and work towards a better future, even if I cannot yet see it.

That said, given the state of the world, progress in terms of the advancement of civilisation seems to have failed, but this is actually not the case. If, for the sake of simplicity, we define this progress as the consolidation of human dignity and the rejection of cruelty – cruelty towards human beings, but also towards animals, our companions on this journey, and towards nature, our common home – then the upward trajectory of civilisation is unquestionable. One need only compare current ethical and moral standards – albeit still crisis-ridden – with those of 100, 200 or 500 years ago. They are, without question, on an upward trajectory.

As Pope Leo XIV stated on the 25^th of May of this year in his Encyclical Letter Magnifica Humanitas (a title that should not be forgotten): “Each generation inherits the task of shaping its own era, of guiding history to become a place where the dignity of every person is safeguarded, justice is promoted and fraternity is made possible. Yet every era also runs the risk of creating an inhumane and more unjust world.”[1]

This risk is currently evident in the weakness of multilateralism, in diplomacy based on force, and in the fragility of the rule of law – which is the foundation of any peaceful civil coexistence – as Pope Leo XIV also stated in January of this year during his annual address to the Diplomatic Corps accredited to the Vatican City State (The Holy See).

But we are not looking at the end of progress; rather, on that systematic upward curve, there are collapses – some more prolonged and some shorter – but progress is restored. History is full of such collapses. To cite a few examples, the European Inquisition was a downturn that lasted, to varying degrees of intensity, for more than three centuries. Auschwitz is the symbolic scene of another collapse, and Gaza is now yet another failure of civilising progress. But history also provides reasons for optimism: slavery has accompanied humanity since the dawn of time, yet it was abolished. Although this may not be widely known, it was perfectly legal in Mauritania until 1981 and was only criminalized in that country in 2001. In the 21^st century! It should be noted, however, that it has now taken on other forms and continues to exist, but there is no longer any physical punishment, and it must be disguised.

The point I am making is that this end of the hegemonic empire we are witnessing – chaotic and confusing, as is the end of every empire – and this civilisational collapse we are experiencing, is merely a temporary phase; progress will continue. And it largely depends on our efforts to determine how long this collapse will last.

What will our attitude be, however, during this collapse, in the face of this global disorder, amidst this self-centred, anti-civilisational current that seeks to impose authoritarianism and rejects tolerance and solidarity?

Without a doubt, we must stand firm and persevere in defending our values – the values that lead to a better world. We need not ask ourselves what will happen; we do not know that, nor do we control it. What we must ask ourselves is what we are going to do. How can we avoid falling into the bleak social scenario that García Lorca described in Poeta en Nueva York (La Aurora) as early as the 1930s: “the mud of figures and laws, (…) artless games, (…) fruitless sweat.”[2]

In Arabic, there is a word that perfectly defines the culture which, in my view, we should embrace at this difficult time: Sumud. Sumud means steadfastness, perseverance or constant resistance in the face of all adversity. Since the Six-Day War in 1967, Palestine has given this concept its current meaning as a non-violent yet active strategy for living and resisting, based on attachment to the land and the preservation of its culture, despite occupation, oppression and extreme hardship. Whilst the Palestinians cling to their land, let us cling to the values that serve the progress of civilisation, despite our sense of being besieged. Let us recall the great Fernando Pessoa: “My homeland is the Portuguese language”; and if, for the poet, language was his homeland, for us the values we share must be ours. Empathy, compassion, tolerance, solidarity… this must be our homeland – an open homeland without borders.

Let us prepare our students to take their place in this nation; let us teach them to use the law for the common good and to overcome this collapse. We must not think that this is utopian or that it is impossible to teach goodness, because, as the poet Cora Coralina said, kindness, too, can be learnt.

I propose a paradigm shift: modern law was based on the first three words of the American Constitution of 1787: “We the people”, which was a cry for freedom in the face of 18th-century absolutism. Since then, freedom has become the paradigm of the aspirations of the 19th and 20th centuries. An aspiration celebrated by citizens, politicians and poets, such as Paul Éluard: “On my school notebooks / On my desk and on the trees / On the sand, on the snow / I write your name”.[3]

Or in Neruda’s “Canto a la Libertad” (published in 1950), which warns us that freedom is never guaranteed, but must be won: “(…) freedom (…) you find yourself waiting/ for someone reckless and daring/ who will deign to win you over.”[4] But Pope Leo XIV warns of a new risk: when this cry for freedom is understood as the vigorous defence of “my freedom”, even at the expense of the enslavement of others – that is, freedom only for the rich and powerful – it eventually turns into outright barbarism. For freedom as the sole reference point is precisely that: barbarism. It must be accompanied by other values which, carrying equal weight, balance it out. This is nothing new; Robespierre already set us on this path when he coined the motto of the French Republic: “Liberté”, of course, that must be complement by “Égalité” – that is, true equality of opportunity – and “Fraternité”, a fraternal and supportive society; this is so because freedom, when isolated and misunderstood, becomes an exaltation of the “self” and gives rise to the excesses of egocentrism. As García Montero recently remarked in A puerta cerrada (2011–2017),[5] “Everything that binds you to the word ‘I’ / is now a danger”.[6]

But the revolutionary slogan did not take sufficiently deep root, not even in France, where it was suppressed on two occasions: during the Second Empire under Napoleon III and during the Vichy regime. These are the setbacks of progress.

Today, we must replace the “We the people” with which he cried out for freedom with an even more powerful and inclusive cry: “We the humanity”. A cry against suicidal egocentrism, against the technological dictatorship. A cry that calls for survival and dignity, which requires moving towards sustainability, the new paradigm.

“We, humanity!” do not need castles or palaces; we need liveable cities. We do not need more missiles; we need more schools. We do not need to reach Mars; we need to reach the hospital and be treated without our passports or bank balances being scrutinised. We do not need preachers; we need children to learn not to lie. We need to rediscover a sense of what it means to be human.

We need to be recognised as a collective – those we once were, those we are now, and those we will become. And, tentatively, the law has already begun to move towards this recognition.

One need only look at the Inter-American Court of Human Rights Advisory Opinion 32/25 of the on the Climate Emergency and Human Rights, dated 29 May 2025,[7] or the United Nations’ “Pact for the Future” (Resolution 79/1 of 22 September 2024),[8] or, as recently as on the 13^th of May of this year, the United Nations General Assembly resolution (A/80/L.65) fully endorsing the Advisory Opinion of 23 July 2025 issued by the International Court of Justice.[9] This alone is enough to show the path we are following. Some of these documents already refer to the “collective interest of humanity” as being in full force – an interest that must be taken into account and considered; in other words, the prelude to the recognition of humanity as a subject of law.

“We, humanity!” – let’s say it in every language. After all, as Joan Manuel Serrat sang in “Te guste o no”, deep down we are all the same: “we share the same fear of death, the same fragility, (…) and the same desire to love and be loved in return”.[10] Here, or at the end of the world, we are all the equals, part of the same whole. In the name of humanity, let us enact the law that brings these things to fruition; it is our duty and what future generations expect of us.

I have often said that we must train imaginative and courageous lawyers. Imaginative enough to find solutions to problems we did not know how to solve, or to those that do not yet even exist; and courageous enough to stand up to the powerful forces that defend the interests of a selfish and self-destructive elite, willing to sacrifice the future of humanity in order to continue amassing power and wealth.

If we wish to build this conscious and caring humanity, the first thing we must teach our students is to identify and combat the myriad Shibboleths that permeate this blind society. “Shibbolet” means “ear of grain” in Hebrew, but to discover its other meaning, we must turn to the Old Testament (dating back more than 3,000 years). Specifically, to the Book of Judges, chapter 12, verses 5 and 6.

When the Ephraimites, fleeing for their lives, sought to cross the Jordan, the Gileadites were waiting for them and made them pronounce “shibbolet”, which the Ephraimites could not do properly; and if they failed to do so, they would be killed on the spot. According to the Holy Scriptures, around 42,000 died in these circumstances.

Since then, “shibboleth” has come to be understood as any identifying characteristic – be it cultural, religious, ethnic, linguistic or of any other nature – that identifies the outsider. The outsider who must be cast out, persecuted or killed. Historically, religion has been a recurring, absurd “shibboleth”, but so too has any other equally absurd difference. In September last year, none other than the United States Supreme Court ruled that ‘racial bias’ or the imperfect use of English were sufficient grounds for immigration patrols to make an arrest. This is “shibboleth” in its purest form. We cannot agree with this.

Let us pass this on to our students and do what Pessoa demanded of himself and told the poet Côrtes-Rodrigues in 1915: “… to work, as much as I can and in every way I can, for the progress of humanity and the broadening of humanity’s consciousness.”[11] It could not be put more clearly.

With the exception of my mentor – out of gratitude – I have not cited any great jurists to whom we owe so much. Neither Kelsen, nor Santi Romano; and I did not do so because I did not wish to follow the path of reason. Instead, I wished to explore and reflect alongside those who question the most sensitive aspects of the human spirit. This is because I believe this is the path that legal education must follow in the 21^st century in order to restore the civilising process. We should stand with Vinicius de Moraes and his ‘Rosa de Hiroshima’,[12] rather than with Mao, for whom “political power grows out of the barrel of a gun”. Violence is, without doubt, part of human behaviour; all species use it to achieve their goals, but precisely for that reason – because it is common to all species – this trait does not set us apart from other animals. What sets us apart are certain sensibilities and the capacity to build and embrace values; that is what makes us human. Mozart sets us apart as a species; Gandhi sets us apart; the violent do not.

I would like to conclude with this amusing observation by the well-known Greek writer Nikos Kazantzakis: “What a strange machine man is! You fill him with bread, wine, fish, and radishes, and out comes sighs, laughter, and dreams”. We should make the most of this marvellous effect and continue dreaming of a better world. Help me to fulfil the promise I made to my children. Let’s teach law for the greater good.

[1] See The Holy See, Encyclical Letter Magnifica Humanitas of His Holiness Pope Leo XIV on safeguarding the human person in the time of artificial intelligence, available at https://www.vatican.va/content/leo-xiv/en/encyclicals/documents/20260515-magnifica-humanitas.html.

[2] Federico García Lorca, La Aurora, from Pueta en Nova York, translated by Stephen Spender and JL Gili, available at https://www.wussu.com/poems/lorca_la_aurora.htm.

[3] The original reads: “Sur mes cahiers d’écolier/ Sur mon pupitre et les arbres/ sur le sable sur la neige/ j’écris ton nom“. Paul Eluard, Liberté, 1942, available at https://www.poetica.fr/poeme-279/liberte-paul-eluard/. The excerpt has been freely translated into English.

[4] The original reads: “(…) libertad (…) te encuentras aguardando / alguien temerario y osado / que se digne a conquistarte.” Pablo Neruda, Canto a la Libertad, 1950, available at https://emigreat.org/canto-a-la-libertad/. The excerpt has been freely translated into English.

[5] Luis García Montero, A puerta cerrada (2011-2017) (Visor de Poesía, 2018).

[6] The original reads: “Todo lo que te une a la palabra yo/es ahora un peligro”. García Montero, A puerta cerrada. The excerpt has been freely translated into English

[7] Available at https://www.corteidh.or.cr/docs/opiniones/seriea_32_en.pdf.

[8] Available at https://docs.un.org/en/a/res/79/1.

[9] Available at: https://docs.un.org/en/A/80/L.65.

[10] The original lyrics of the song read: “tenemos el mismo miedo a morir, idéntica fragilidad, (…) y los mismos deseos de amar y de que alguien nos ame a su vez”. The excerpt has been freely translated into English.

[11] The original reads: “… trabalhar, quanto possa e em tudo quanto possa, para o progresso da humanidade e o alargamento da consciência da humanidade”, in Fernando Pessoa, Carta a Armando Côrtes-Rodrigues, 19 January 1915, available at http://arquivopessoa.net/textos/3510.The excerpt has been freely translated into English.

[12] The famous poem depicts and criticises the horrors brought about by the atomic bomb.

Picture credit: by Kari Alfonso on pexels.com.