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The Digital Markets Act (DMA) is a regulation enacted by the European Union as part of the European Strategy for Data. Its final text was published on 12 October 2022, and it officially entered into force on 1 November 2022. The main objective of the DMA is to regulate the digital market by imposing a series of by-design obligations (see Recital 65) on large digital platforms, designated as “gatekeepers”. Under to the DMA, the European Commission is responsible for designating the companies that are considered to be gatekeepers (e.g., Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft). After the Commission’s designation on 6 September 2023, as per DMA Article 3, a six-month period of compliance followed and ended on 6 March 2024. At the time of writing, gatekeepers are thus expected to have made the necessary adjustments to comply with the DMA.

Gatekeepers’ obligations are set forth in Articles 5, 6, and 7 of the DMA, stemming from a variety of data-sharing and data portability duties. The DMA is just one pillar of the European Strategy for Data, and as such shall complement the General Data Protection Regulation (see Article 8(1) DMA), although it is not necessarily clear, at least at first glance, how the DMA and the GDPR can be combined together. This is why the main objective of this blog post is to analyse Article 6 DMA, exploring its effects and thereby its interplay with the GDPR. Article 6 DMA is particularly interesting when exploring the interplay between the DMA and the GDPR, as it forces gatekeepers to bring the covered personal data outside the domain of the GDPR through anonymisation to enable its sharing with competitors. Yet, the EU standard for legal anonymisation is still hotly debated, as illustrated by the recent case of SRB v EDPS now under appeal before the Court of Justice.

This blog is structured as follows: First, we present Article 6(11) and its underlying rationale. Second, we raise a set of questions related to how Article 6(11) should be interpreted in the light of the GDPR.

Article 6(11) DMA provides that:

“The gatekeeper shall provide to any third-party undertaking providing online search engines, at its request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on its online search engines. Any such query, click and view data that constitutes personal data shall be anonymised.”

It thus includes two obligations: an obligation to share data with third parties and an obligation to anonymise covered data, i.e. “ranking, query, click and view data,” for the purpose of sharing.

The rationale for such a provision is given in Recital 61: to make sure that third-party undertakings providing online search engines “can optimise their services and contest the relevant core platform services.” Recital 61 indeed observes that “Access by gatekeepers to such ranking, query, click and view data constitutes an important barrier to entry and expansion, which undermines the contestability of online search engines.”

Article 6(11) obligations thus aim to address the asymmetry of information that exist between search engines acting as gatekeepers and other search engines, with the intention to feed fairer competition. The intimate relationship between Article 6(11) and competition law concerns is also visible in the requirement that gatekeepers must give other search engines access to covered data “on fair, reasonable and non-discriminatory terms.”

Article 6(11) should be read together with Article 2 DMA, which includes a few definitions.

1. Ranking: “the relevance given to search results by online search engines, as presented, organised or communicated by the (…) online search engines, irrespective of the technological means used for such presentation, organisation or communication and irrespective of whether only one result is presented or communicated;”

2. Search results: “any information in any format, including textual, graphic, vocal or other outputs, returned in response to, and related to, a search query, irrespective of whether the information returned is a paid or an unpaid result, a direct answer or any product, service or information offered in connection with the organic results, or displayed along with or partly or entirely embedded in them;”

There is no definition of search queries, although they are usually understood as being strings of characters (usually key words or even full sentences) entered by search-engine users to obtain relevant information, i.e., search results.

As mentioned above, Article 6 (11) imposes upon gatekeepers an obligation to anonymise covered data for the purposes of sharing it with third parties. A (non-binding) definition of anonymisation can be found in Recital 61: “The relevant data is anonymised if personal data is irreversibly altered in such a way that information does not relate to an identified or identifiable natural person or where personal data is rendered anonymous in such a manner that the data subject is not or is no longer identifiable.” This definition echoes Recital 26 of the GDPR, although it innovates by introducing the concept of irreversibility. This introduction is not surprising as the concept of (ir)reversibility appeared in old and recent guidance on anonymisation (see e.g., Article 29 Working Party Opinion on Anonymisation Technique 2014, the EDPS and AEPD guidance on anonymisation). It may be problematic, however, as it seems to suggest that it is possible to achieve absolute irreversibility; in other words, that it is possible to guarantee an impossibility to link the information back to the individual. Unfortunately, irreversibility is always conditional upon a set of assumptions, which vary depending on the data environment: in other words, it is always relative. A better formulation of the anonymisation test can be found in section 23 of the Quebec Act respecting the protection of personal information in the private sector: the test for anonymisation is met when it is “at all times, reasonably foreseeable in the circumstances that [information concerning a natural person] irreversibly no longer allows the person to be identified directly or indirectly.“ [emphasis added].

Recital 61 of the DMA is also concerned about the utility third-party search engines would be able to derive from the shared data and therefore adds that gatekeepers “should ensure the protection of personal data of end users, including against possible re-identification risks, by appropriate means, such as anonymisation of such personal data, without substantially degrading the quality or usefulness of the data”. [emphasis added]. It is however challenging to reconcile a restrictive approach to anonymisation with the need to preserve utility for the data recipients.

One way to make sense of Recital 61 is to suggest that its drafters may have equated aggregated data with non-personal data (defined as “data other than personal data”). Recital 61 states that “Undertakings providing online search engines collect and store aggregated datasets containing information about what users searched for, and how they interacted with, the results with which they were provided.”  Bias in favour of aggregates is indeed persistent in the law and policymaker community, as illustrated by the formulation used in the adequacy decision for the EU-US Data Privacy Framework, in which the European Commission writes that “[s]tatistical reporting relying on aggregate employment data and containing no personal data or the use of anonymized data does not raise privacy concerns”. Yet, such a position makes it difficult to derive a coherent anonymisation standard.

Generating a means or a count does not necessarily imply that data subjects are no longer identifiable. Aggregation is not a synonym for anonymisation, which explains why differentially-private methods have been developed. This brings us back to  when AOL released 20 million web queries from 650,000 AOL users, relying on basic masking techniques applied to individual-level data to reduce re-identification risks. Aggregation alone will not be able to solve the AOL (or Netflix) challenge.

When read in the light of the GDPR and its interpretative guidance, Article 6(11) DMA raises several questions. We unpack a few sets of questions that relate to anonymisation and briefly mention others.

The first set of questions relates to the anonymisation techniques gatekeepers could implement to comply with Article 6(11). At least three anonymisation techniques are potentially in scope for complying with Article 6(11):

• global differential privacy (GDP): “GDP is a technique employing randomisation in the computation of aggregate statistics. GDP offers a mathematical guarantee against identity, attribute, participation, and relational inferences and is achieved for any desired ‘privacy loss’.” (See here)

• local differential privacy (LDS): “LDP is a data randomisation method that randomises sensitive values [within individual records]. LDP offers a mathematical guarantee against attribute inference and is achieved for any desired ‘privacy loss’.” (see here)

• k-anonymisation: is a generalisation technique, which organises individuals records into groups so that records within the same cohort made of k records share the same quasi-identifiers (see here).

These techniques perform differently depending upon the re-identification risk at stake. For a comparison of these techniques see here. Note that synthetic data, which is often included within the list of privacy-enhancing technologies (PETs),  is simply the product of a model that is trained to reproduce the characteristics and structure of the original data with no guarantee that the generative model cannot memorise the training data. Synthetisation could be combined with differentially-private methods however.

• Could it be that only global differential privacy meets Article 6(11)’s test as it offers, at least in theory, a formal guarantee that aggregates are safe? But what would such a solution imply in terms of utility?

• Or could gatekeepers meet Article 6 (11)’s test by applying both local differential privacy and k-anonymisation techniques to protect sensitive attributes and make sure individuals are not singled out? But again, what would such a solution mean in terms of utility?

• Or could it be that k-anonymisation following the redaction of manifestly identifying data will be enough to meet Article 6(11)’s test? What does it really mean to apply k-anonymisation on ranking, query, click and view data? Should we draw a distinction between queries made by signed-in users and queries made by incognito users?

Interestingly, the 2014 WP29 opinion makes it clear that k-anonymisation is not able to mitigate on its own the three re-identification risks listed as relevant in the opinion, i.e., singling out, linkability and inference: k-anonymisation is not able to address inference and (not fully) linkability risks. Assuming k-anonymisation is endorsed by the EU regulator, could it be the confirmation that a risk-based approach to anonymisation could ignore inference and linkability risks?  As a side note, the UK Information Commissioner’s Office (ICO) in 2012 was of the opinion that pseudonymisation could lead to anonymisation, which implied that mitigating for singling out was not conceived as a necessary condition for anonymisation. The more recent guidance, however, doesn’t directly address this point.

The second set of questions Article 6(11) poses is related to the overall legal anonymisation standard. To effectively reduce re-identification risks to an acceptable level, all anonymisation techniques need to be coupled with context controls, which usually take the form of security techniques such as access control and/or organisational and legal measures, such as data sharing agreements.

• What types of context controls should gatekeepers put in place? Could they set eligibility conditions and require that third-party search engines evidence trustworthiness or commit to complying with certain data protection-related requirements?

• Wouldn’t this strengthen the gatekeeper’s status though?

It is important to emphasise in this regard that although legal anonymisation might be deemed to be achieved at some point in time in the hands of third-party search engines, the anonymisation process remains governed by data protection law. Moreover, anonymisation is only a data handling process: it is not a purpose, and it is not a legal basis, therefore purpose limitation and lawfulness should be achieved independently. What is more, it should be clear that even if Article 6(11) covered data can be considered legally anonymised in the hands of third-party search engines once controls have been placed on the data and its environment, these entities should be subject to an obligation not to undermine the anonymisation process.

Going further, the 2014 WP29 opinion states that “it is critical to understand that when a data controller does not delete the original (identifiable) data at event-level, and the data controller hands over part of this dataset (for example after removal or masking of identifiable data), the resulting dataset is still personal data.” This sentence, however, now seems outdated. While in 2014 Article 29 Working Party was of the view that the input data had to be destroyed to claim legal anonymisation of the output data, Article 6(11) nor Recital 61 suggest that the gatekeepers would need to delete the input search queries to be able to share the output queries with third parties.

The third set of questions Article 6(11) poses relates to the modalities of the access:   What does Article 6(11) imply when it comes to access to data, should it be granted in real-time or after the facts, at regular intervals?

The fourth set of questions Article 6(11) poses relates to pricing. What do fair, reasonable and non-discriminatory terms mean in practice? What is gatekeepers’ leeway?

To conclude, the DMA could signal a shift in the EU approach to anonymisation or maybe just help pierce the veil that was covering anonymisation practices. The DMA is actually not the only piece of legislation that refers to anonymisation as a data-sharing safeguard. The Data Act and other EU proposals in the legislative pipeline seem to suggest that legal anonymisation can be achieved, even when the data at stake is potentially very sensitive, such as health data. A better approach would have been to start by developing a consistent approach to anonymisation relying by default upon both data and context controls and by making it clear that, as anonymisation is always a trade-off that inevitably prioritises utility over confidentiality; therefore, the legitimacy of the processing purpose that will be pursued once the data is anonymised should always be a necessary condition to an anonymisation claim. Interestingly, the Act respecting the protection of personal information in the private sector mentioned above makes purpose legitimacy a condition for anonymisation (see section 23 mentioned above). In addition, the level of data subject intervenability preserved by the anonymisation process should also be taken into account when assessing the anonymisation process, as suggested here. What is more, explicit justifications for prioritising certain re-identification risks (e.g., singling out) over others (e.g., inference, linkability) and assumptions related to relevant threat models should be made explicit to facilitate oversight, as suggested here as well.

To end this post, as anonymisation remains a process governed by data protection law, data subjects should be properly informed and, at least, be able to object. Yet, by multiplying legal obligations to share and anonymise, the right to object is likely to be undermined without the introduction of special requirements to this effect.

For six months, Israel has been waging a brutal offensive on Gaza, killing over 30.000 Palestinians, destroying more than 60% of the homes in Gaza, and making Gazans account for 80% of those facing famine or catastrophic hunger worldwide. High Representative Borrell described the situation as an ‘open-air graveyard’, both for Palestinians and for ‘many of the most important principles of humanitarian law’. Yet, the Union and its Member States seem unwilling to use their capacity to deter Israel from further atrocities. European leaders continue to express steadfast political support for Israel and to provide material support for the war by upholding pre-existing trade relations, including arms exports. This blogpost examines to what extent this continued support displayed by the Union and its Member States constitutes a violation of Union law. It does so in light of two recent rulings, both delivered by courts in The Hague, which suggest support for Israel in the current context might be problematic not just from a moral, but also from a legal standpoint. The central argument developed in this post is that Union law, when interpreted in a manner that respects – or at least does not undermine – the fundamental norms of international law, establishes sufficiently concrete obligations that the Union and its Member States currently do not meet given their continued support for Israel.

The ICJ Order in South Africa v Israel

On 26 January 2024, the ICJ delivered its landmark Order indicating provisional measures in South Africa v Israel. South Africa had initiated proceedings against Israel under Article IX of the Genocide Convention, accusing Israel of breaching multiple obligations under the Convention, the most serious one being the commission of genocide. In its request, South Africa asked the ICJ to take provisional measures to prevent extreme and irreparable harm pending the ICJ’s determination on the merits. The ICJ found it at least plausible that Israel violates the rights of Palestinians in Gaza protected by the Genocide Convention and thus required Israel to take all measures within its power to prevent genocide.

Several scholars and civil society organisations have stressed that this ruling also has consequences for third states (as for example argued by Salem, Al Tamimi and Hathaway). The Genocide Convention contains the duty to prevent genocide (Article I), and prohibits complicity in genocide (Article III(e)). As previously held by the ICJ, this means that States are obliged to use all reasonably means with a deterrent effect to prevent genocide, as soon as they learn of the existence of a serious risk of genocide. Since all EU Member States are party to the Genocide Convention, and the Convention has jus cogens status, these obligations are binding on the Union and its Member States. Notwithstanding the valid observation that the ICJ Order in and of itself might not meet the evidentiary threshold for establishing the required ‘serious risk’, the ICJ’s findings on genocidal intent, as well as the strong factual substantiation of the judgement provide enough reason to carefully (re)assess any support for Israel in light of the obligations under the Genocide Convention.

Relevant obligations under Union law

Such clearly defined obligations to attach consequences to behaviour of a third State indicating a serious risk of genocide are not expressly laid down in Union law. Despite the Treaties being littered with aspirational, high-sounding references to peace, security, fundamental rights, human dignity, and the observance of international law, Union law still leaves extremely wide discretion to the Union and the Member States in deciding how they deal with third states engaging in serious violations of international law. Certainly, the Treaties do allow for various policy responses, like adopting economic sanctions, suspending agreements with the concerned third state, or targeting disinformation, to name a few of the measures adopted to counter the Russian aggression in Ukraine. The issue, however, is that Union law does not clearly prescribe adopting such measures.

An exceptional legal limit within Union law to political discretion in this regard is laid down in Article 2(2)(c) of the Council’s Common Position 2008/944/CFSP. It obliges Member States to deny export licenses for arms in case of ‘a clear risk that [they] might be used in the commission of serious violations of international humanitarian law’. However, enforcement of this obligation on the Union level is effectively impossible. The CJEU cannot interpret or apply the instrument because of its limited jurisdiction in the Common and Foreign Security Policy area, stemming from Articles 24 TEU and 275 TFEU. Moreover, the Council on its part refuses to monitor compliance with the Common Position, leaving it entirely up to Member States to give effect to the instrument.

It would thus appear that there is a conflict between the Union’s foundational values expressed in Articles 2, 3, and 21 TEU, and the lack of effective legal limits set on the Union level to continued support for a third state that disregards humanitarian law to the extent of using starvation as a weapon of war. The main argument of this blogpost is that a part of the solution to this apparent conflict lies in interpreting Union law consistently with fundamental norms of international law. Specifically, obligations stemming from international law can play an important role in defining effective legal obligations that limit the discretion enjoyed by the Union and the Member States when interpreting and applying Union law in the face of a crisis such as the war in Gaza.

The interplay between public international law and the Union’s legal order is the subject of complex case law and academic debate (for an overview, see Wessel and Larik). The general picture emerging from these debates is the following. On the one hand, the ECJ expressed on multiple occasions that the EU legal order is ‘autonomous’, which shields the internal allocation of powers within the EU from being affected by international agreements (for instance in Opinion 2/13, paras 179f, or Kadi I, para 282). On the other hand, binding international agreements to which the Union is a party, as well as binding rules of customary international law, are both considered to form an ‘integral part’ of Union law and are binding upon the institutions of the Union when they adopt acts (see for instance ATAA, paras 101-102). Within the hierarchy of norms, this places international law in between primary Union law and secondary Union law. Furthermore, the ECJ specified that secondary Union law needs to be interpreted ‘as far as possible in the light of the wording and purpose of’ international obligations of the Union, including those stemming from customary international law (for example in Hermès, para 28, and Poulsen, para 9). As Ziegler notes, the duty to interpret Union law consistently with international law can even extend to obligations under international law that do not rest on the Union particularly, but only on the Member States, given that under the principle of sincere cooperation, the Union ought to avoid creating conflicting obligations for Member States.

Given the status of the Genocide Convention as jus cogens, and the fact that all Member States are party to the Convention, secondary Union law must be read in accordance with the obligations to prevent genocide and avoid complicity in genocide. While this may sound rather abstract at first, around two weeks after the ICJ Order a ruling by a Dutch national court in The Hague showed how the exercise of concretising Union law through consistent interpretation with international law could look like.

The ruling of the Hague Court of Appeal 

On 12 February 2024, The Hague Court of Appeal ruled in favour of the applicants (Oxfam Novib, Pax, and The Rights Forum), and decided that the Dutch State was obliged to halt any transfer of F-35 plane parts to Israel. The case was previously discussed in contributions on other blogs, such as those by Yanev and Castellanos-Jankiewicz. For the purposes of this blogpost, it remains particularly relevant to analyse in detail the legal reasoning adopted by the Hague court of appeal (hereinafter: ‘the court of appeal’).

The court of appeal established first that there exists a ‘clear risk’ that Israel commits serious violations of international humanitarian law, and that it uses F-35 planes in those acts. Then, it went on to unpack the legal consequences of this finding. The Dutch State had granted a permit in 2016 that allowed for transfers of goods as part of the ‘F-35 Lightning II-programme’, also to Israel. An important feature of this permit is its unlimited duration, not requiring a reassessment under any circumstance.

The Hague court went on to assess the legality of this lack of any mandatory reassessment. To understand the court’s reasoning, it is necessary to briefly introduce the three legal instruments that the court used for this assessment. The first instrument used was the Dutch Decision on strategic goods, on which the general permit was based. This instrument outlaws the granting of permits that violate international obligations. In the explanatory note to the Decision, the legislator referred in this regard to the earlier mentioned Council Common Position, the second relevant legal instrument. Article 1bis of the Common Position ‘encourages’ Member States to reassess permits if new information becomes available. On first reading, the provision does not seem to require a reassessment, as the Dutch State argued. To determine whether a reassessment was however indeed mandatory, the court took recourse to a third instrument, namely the Geneva Conventions, which lay down the core principles of international humanitarian law. Hereby, Common Article 1 of the Conventions holds that States must ‘undertake to respect and ensure respect for the present Convention in all circumstances’, while the Conventions lays down the core principles of international humanitarian law.

The most relevant feature of the ruling is the Hague court’s combined usage of the teleological and consistent interpretation methods. The court’s reasoning can be reconstructed into four steps. First, the court interpreted the Geneva Conventions as forbidding States to ‘shut their eyes’ to serious violations of humanitarian law, which would be the case if no actual consequences would be attached to such violations. Secondly, it stated that the Common Position should be interpreted as far as possible in a way that does not conflict with the Geneva Conventions. Thirdly, the court found that it was indeed possible to interpret the Common Position consistently with the Geneva Conventions. By reading the Common Position as requiring a reassessment of permits in cases of serious violations of humanitarian law, Member States consequentially are not allowed to ‘shut their eyes’ to those violations, which satisfies the Geneva Conventions’ obligations. Moreover, such an interpretation makes sense in light of the object and purpose of the Common Position. If the Common Position would allow Member States to grant permits of unlimited duration, without requiring their reassessment, they would be able to completely undermine the instrument. Thus, interpreting the Common Position in light of the obligations under the Geneva Conventions, and in light of its object and purpose, led the Hague court to find a duty to reassess in this case. Finally, the court interpreted the Dutch Decision on strategic goods in a way that is consistent with the Common Position, by reading into the Decision an obligation to reassess the granting of a permit under certain circumstances, like those of the present case. This last step reflects the Dutch constitutional duty to interpret national law as far as possible consistently with international law.

Consequently, the court drew a red line and explicitly limited the typically wide political discretion of the Dutch State in foreign and security policy. The court observed that if the Dutch State had undertaken the mandatory reassessment (properly), it should have applied the refusal ground of Article 2(2)(c) of the Common Position and halt the transfers. In the face of such a clearly defined legal obligation, the court simply dismissed arguments of the Dutch State that halting the transfer of F-35 parts would harm its relations with the United States and Israel or would endanger Israel’s existence.

Looking ahead

The ICJ’s observations in the proceedings started recently by Nicaragua against Germany for allegedly failing to do everything possible to prevent genocide, or even facilitating genocide, can further specify these legal limits. However, the serious risk that the Union and its Member States are breaching fundamental norms of international law by refusing to attach considerable political or economic consequences to Israel’s conduct in Gaza already requires taking a new look at the obligations stemming from Union law. Complying with the duties of the Genocide Convention and Geneva Conventions should be done as much as possible by interpreting any rule of secondary Union law in a way that respects, or at least does not undermine, these international obligations. As the ruling of the Hague court demonstrates, interpreting Union law consistently with international law can also help to give full effect to the purpose of the Union instrument itself, especially when that instrument at first glance does not contain clear obligations.

In line with the ruling of the Hague court, an interpretation of the Common Position could integrate the obligations under the Geneva Conventions by prohibiting further arms exports to Israel. Given the lack of enforcement on the Union level, it is up to other Member State courts to adopt and apply such an interpretation. For example, an argument before German courts to read Article 6(3) of the German War Weapons Control Act in line with the Common Position could be made, as was already suggested by Stoll and Salem.

Other instruments of Union law that could be interpreted in a similar way are the legal bases for trade relations with Israel and Israel’s status as an associated country receiving funding under Horizon Europe, including for the development of drone technology and spyware, which has drawn criticism from MEPs. Both Article 2 of the EU-Israel Association Agreementand Article 16(3) of the Regulation establishing Horizon Europe condition association with Israel explicitly on ‘respect for human rights’. It would be difficult to determine any legal value of this condition if Israel’s current behaviour would not be considered sufficient disrespect for human rights to trigger the suspension of these instruments.

The importance of concretising the abstract values that undergird Union law into concrete rules of law, thereby setting legal limits to political discretion, cannot be overstated. As this post demonstrates, integrating obligations from international law can develop interpretations of secondary Union law that allow the Union to follow through on its values, something particularly crucial in light of the current immense suffering of Palestinians in Gaza.

The coming of spring promises many changes, including a newly elected European Parliament and a new college of Commissioners leading the European Commission. The re-opening of the Spitzenkandidaten system has also stirred the debate on the democratic legitimacy of the EU institutions. Focusing on the European Commission, one question that needs answering is about its members: are the European Commissioners creatures of the world of politics or instead independent experts of a technocratic ‘government’?

Looking at it from a constitutional perspective, the Commission is a unicum, with no one-to-one equivalent in nation states. The only substantive provision in the Treaties regarding the work of Commissioners is included in Article 17(3) TEU, which specifies that Commissioners shall be appointed ‘on the ground of their general competence and European commitment from persons whose independence is beyond doubt.’ However, that does not mean that Commissioners must be completely apolitical:  indeed, the Guidelines of the Commission provide for the possibility of Commissioners taking part in the campaigns and elections of the European Parliament (see Article 10).  While political standing helps to set the wheels in motion, there should also be a sense of democracy and direct responsibility to the electorate of Commissioners, if the Commission is to resemble a ‘European Government’. If priority is to be given to Commission duties over party commitment (Article 10(1) Commission Guidelines), then Commissioner candidates are hardly going to act in their neutral and professional capacity, if that would simultaneously mean kicking away the ladder that puts them in their current position. In other words, if Commissioners belong to political parties, this inherently puts them into a precarious conflict between party affiliation and their work as independent public officials (Gehring and Schneider p. 1). 

The legal framework to appoint Commissioners

Since the transformation from the High Authority and the merger in 1967, the Commission has seen a gradual increase in the number of Commissioners (from the original nine to the current 27). The Delors administration is still cited today as the ‘golden standard’ for Commission administrations. The direction and dynamism of this administration helped to solidify the position of the European Commission as the principal advocate for further integration. Among its greater achievements are the completion of the Single Market and the introduction of a single currency. The main reason for setting the Delors administration as the measuring stick is a specific attribute the administration possessed – an ability to identify the political objective, weigh up competing interests, and set out a road map to achieve it. In a sense, one could say the Delors administration was political on the EU level.

Since then, the power of the Commission has steadily increased, with Romano Prodi being dubbed ‘virtually the prime minister of the European Union’, mainly because the President of the Commission could co-decide with Heads of Government/State of the Member States on who should sit in the new administration – a change introduced with the Treaty of Amsterdam (Article 4(4)). At the time, both the German Chancellor Schröder and Mr. Prodi expressed the desire to form the new Commission as a body of independent experts and not of retired or retiring politicians. How does this reflect on the appointment of the Commission as the ‘European Government’?

Article 17(7) TEU stipulates that the candidate for President of the Commission is to be proposed by the European Council, taking into account the results of the European Elections, and then to be elected by a simple majority in the European Parliament.

For the rest of the Commissioners, neither the Treaties nor any inter-governmental agreement specifies how candidates for the Commission are to be chosen in individual Member States. In other words, no source of EU law regulates national procedures of selecting a candidate for the European Commission. The singular provision on this is Article 17(3) TEU that states that ‘the members of the Commission shall be chosen on the ground of their general competence’ and not based on their electability as politicians. This paucity of procedural guidelines itself leaves Member States free to implement their own procedures. For example, Austria regulated it partially in Article 23c of its Federal Constitutional Law, while Slovenia included it into its Cooperation in EU Affairs Act. Similarly, both examples give discretionary power to the national government to propose a candidate, who has to be approved by the national legislature – either the pertinent committee or the plenum.

The Commissioner’s role – is it political or technocratic?

The technocratic side

While it is customary for national governments to use the political apparatus to get elected, some scenarios require an appointed technocratic government of experts to lead the country, in the capacity of interim or caretaker governments (Lachmayer and Konrad). Such technocratic governments are considered to be above party politics, which enables them to bridge the political gaps between political parties.

Since the job of Commissioner requires a certain amount of independence and impartiality towards individual Member States, a technocratic candidate, with no political background, yet with expert knowledge in the department’s work, would seem to meet this ideal. If Article 17(3) TEU is to be analysed word by word, then candidates are to be ‘chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt’. While the administrations before the Juncker administration have not been viewed as ‘political’, they always included experienced public officials, who have been well acquainted with the functioning of the European Union (Peterson p. 9-21). In fact, if the principal role of the Commission is to combine all 27 different national perspectives and unite them into one voice, while reaching the optimal consensus, that ‘speaks for Europe’, technocratic – and not political – qualities seem a better choice.

While the role of Commission President has certain functions resembling a Head of Government (Craig and de Búrca, p. 32), which require a more political profile, the role of an individual Commissioner itself does not necessarily require large political capital. This makes the Commission wear ‘two hats’ (as the 19^th-century expression goes) – being involved in politics, on the one side, and remaining above the political ground, on the other. The potential problem that could emerge from a politically-disengaged administration may be the political implementation of the Commission’s work: if the Commission’s work is detached from the political reality, both sides of the spectrum – the political and the administrative – are doing Sisyphean tasks.

In the past, it would seem that almost every administration had a mixture of both. This might be attributed to the selection procedure, where Member States should (ideally) propose three candidates for the (future) President of the Commission to choose from. The last two European elections have shown us that this formal requirement is mostly ignored, even when the Member States were asked to adhere to a female-male balance of the Commission. As mentioned previously, every administration had a combination of both the administrative and the political component, but there has never been a formal requirement to balance both sides in the entire College of Commissioners. A possible reform of this is discussed below.

The political side

Some authors consider the Commission to be an inherently political institution, which sometimes tries to tone down its own political importance, to give itself a sense of impartiality. The practice of appointing party members as the candidates to become Commissioners is evidently more widespread, with 24 Commissioners being national party members or affiliated to a party. As far as political appointments are concerned, the past has also shown us that playing party politics in the Commission does not end well: as seen by the example of Sylvie Goulard in 2019 as the French candidate being replaced by Mr. Breton.

The administration under Jean-Claude Juncker was judged as one of the more politically motivated Commissions in the history of the EU. With Mr. Juncker being elected following the Spitzenkandidaten procedure, the very birth of this administration was political. When forming his Commission, he ‘promised to put together a political Commission’ (Juncker, 2014). While this might have been desired to ‘revamp’ European integration, it has proven to be a significantly damaging factor for the impartiality of the Commission on rule of law issues (noticeably in Poland and Hungary). A ‘deliberate governmental strategy of systematically undermining all checks and balances in Poland’ (Pech) and ‘saying goodbye […] to liberal democracy’ (Hungarian Prime Minister Orbán in 2018) were not developments that took place over a short period of time. The Commission certainly tired to remedy the situation (Michelot, 2019), yet showed internal splits and hesitancy in launching Article 7 TEU proceedings. Perhaps the most important setback is that a political Commission cannot ‘pretend that all of the EU’s policy goals are reconcilable and mutually supportive’ (Dawson, 2018): in the crucial politically disputed areas, a political Commission pursues the prevailing political majority and not ‘the wider EU interest’.

Taking these findings into account and applying them to the current electoral campaign, having Member of the European Parliament (MEP) candidates who already had a post in the Commission could improve a party’s credibility in European affairs as well as signal that the candidate is prepared to face public scrutiny, at least at the level of his/her local constituency. So far, at least five of the current Commissioners are also running for a seat in the European Parliament including Ursula von der Leyen and Nicolas Schmit as Spitzenkandidaten. This, of course, does not translate to immediate electoral success for their party but could be an important factor in the final vote. Standing for the European Elections could increase a candidate’s democratic legitimacy as an individually chosen representative to hold the post of Commissioner and contribute to further democratise the Commission as an institution.

Since elections are difficult to predict, national governments rarely announce their choice for the future Commissioner, nor take a stance on the Spitzenkandidaten before the results. If a governing party does announce a candidate, it is usually either someone from their own ranks or someone with close ties to them. In doing so, the party brands them with their political colours. By avoiding naming a candidate in the campaign stage of the European elections, they partly avoid the possible embarrassment if their party were to lose the election and at the same time keep their options open, in case a broader consensus would be required.

In this regard, the current campaign in Slovenia is quite intriguing. The biggest government party announced their candidate for the future Commissioner, without even having a full list of Slovenian candidates for the European Parliament. It is confirmed that their candidate Tomaž Vesel will not lead the party into the election, nor will he even stand as a candidate. Nationally, this decision has caused a governmental crisis, allowing the Government to ignore the results of the European elections already before they have even come out as well as the opinion of other coalition parties due to the opaque rules on naming a candidate for the Commission. It is difficult to comprehend how a nominee for the Commission, who neither participates in the campaign, nor even stands as a candidate for the European Parliament can help solve the democrat deficit problem in the EU.

Possible reforms – fostering more democracy in the selection procedure

As is often the case, a blend of both systems i.e. the technocratic and the political system would be the optimal solution. As the apex of the European bureaucratic machine, the Commission requires a political charge to create wider policy. However, the bigger picture requires of the Commissioners’ expert knowledge of their own department and a large amount of independence, if they intend to do a successful job. If we accept that the Commission is simultaneously a political and a technocratic institution, might it not be sensible also to try and strike a balance between Commissioners being both political actors and impartial experts, to maximise the Commission’s efficiency?

So far, no additional requirements for Commissioner candidates have been voiced, yet it would seem that several of the incumbent Commissioners have decided to actively participate in the coming European elections, standing for election as MEPs. In this light, it would perhaps be prudent to consider the long-standing British constitutional practice that ministers – the executive – are simultaneously members of the legislature. This makes the British Cabinet effectively ‘a committee of the legislative body selected to be the executive body’ (p. 48 Bagehot 1867).

This holds significant advantages in terms of democratic accountability, since all members of the executive have been directly chosen by the people to represent them in the highest democratic institution – the parliament. In other words, this enables the public to narrow the pool of possible candidates that can hold public office. It also significantly prevents the occurrence of nepotistic appointments in the executive and legislative institutions. At the same time, ministers enjoy a certain degree of independence and a high political profile, regardless of their position in government, which contributes to their independence in cases of executive autocracy. An example of this is the unprecedented revolt in the final days of Mrs. Thatcher’s government.

Many of the above-mentioned strengths would improve the current constitutional predicament of the Commission: if fostering more democracy is the goal, then requiring future Commissioners to be a part of the biggest international democratic legislative body would give the peoples of Europe far more power in choosing their own representatives as well as the country’s representative in the Commission (although the Commissioners are expressly forbidden from following instructions of national governments or other entities). Giving the electorate the power to decide who enters Parliament and consequently the Commission would also impede the search for the ‘ideal candidate’ to lead a department. Additionally, if only members of the legislature could also occupy positions on the MEP’s staff, then the unfortunate spat on President von der Leyen’s staff and the accusations of nepotismmight have been completely avoided.

The incorporation of these potential changes would, however, likely only be possible by re-opening and amending the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).

The epilogue after June

It should be noted that there is an important difference between participating in the European elections and being appointed as Commissioner. How one is elected (or appointed) has consequences on one’s job performance. Does participating in the elections hinder a candidate’s ability to act independently and apolitically in the future? Though the question is meant to be rhetorical, no politician would like to return to the electorate without having fulfilled at least a part of the promises and policies on which he or she was elected.

After the 9^th of June, the future administration of the Commission will start taking shape. Since the biggest political groupings have returned to the election campaign with their own candidate to lead the Commission, we can justifiably claim that the Spitzenkandidaten are back. This would effectively solidify the claim of the biggest ‘winners’ in June to demand their own candidate is nominated as the President of the Commission. Given the lukewarm reception of Mr. Juncker and the rejection of Manfred Weber in 2019, the selection of the candidate for Commission President or election of the Commission President could go either way. The selection of the President of the Commission could just as well affect the proposals of Commissioners from the Member States. It would be important however, to consider the political and the technocratic arguments and ultimately usher in more democracy to the European Commission, by creating a balance of both interests – either in terms of quality or quantity.

On 18 April 2024 the European Commission issued a recommendation for a Council Decision authorising the opening of negotiations for an agreement between the EU and the UK on youth mobility. This is the first time since the signing of the Trade and Cooperation Agreement (TCA) in 2021 that the EU has proposed the conclusion of a legal framework for mobility of persons between the EU and UK. Free movement of persons ceased between the two as from 1 January 2021. Since then there has been a continuing exodus of EU nationals from the UK: 87,000 more EU nationals left the UK than came to it in 2023 (COM(2024)169 p 2). EU national students coming to the UK has dropped by 50%.

In response to this changing landscape of mobility, in 2023 the UK government has been approaching some (but not all) Member States regarding the possible negotiation of youth mobility arrangements based on existing UK national law. This unilateral action has sparked the Commission to seek a negotiating mandate from the Council to block possible bilateral arrangements between the UK and some Member States to the exclusion of others. This is consistent with the Council position adopted on 23 March 2018 that any future partnership between the EU and the UK on mobility of persons should be based on full reciprocity and non-discrimination among Member States.

As a result of the upheaval which the decision to leave the EU caused to the UK political class, including among other things a change of prime minister, while the UK had been interested in youth mobility in 2018, by 2019 the government was no longer willing to include this in the TCA. This has meant that youth mobility between the two has been regulated by national law in the UK and by a mix of EU and national law in the Member States. The UK has a long standing youth mobility programme limited to young people, nationals of countries specified in the immigration rules, between the ages of 18 to 30 or 18 to 35, depending on what country the person is a national of, and limited to two years. No EU country is included in this category (though Andorra, Iceland, Monaco and San Marino are).

The Commission proposes that a new youth mobility agreement be part of the TCA framework and remains neutral on whether it would be a Union-only or mixed agreement, something to be determined at the end of the negotiations. Similarly, it considers that the legal basis for the agreement would have to be determined only at the end of the negotiations. Neither of these issues is likely to meet with enthusiasm by the Council which may wish a clearer remit to the Commission regarding what can be negotiated. The Commission considers that only a formal agreement between the UK and the EU will achieve the objective in providing legal certainty and addressing the issue of non-discrimination. It states that only a “binding mutual understanding in the form of a formal international agreement” can guarantee legal certainty. Nonetheless, the Commission envisages that the agreement would be supplemental to the TCA and would be part of its single and uniform institutional framework, including rules on dispute settlement.

For young people in the EU and the UK this would be a rather unsatisfactory framework on account of Article 5 TCA. This states that (with a sole exception for social security) “nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.” So young people seeking to exercise mobility rights under any new agreement would not be able to rely on such an agreement if it is adopted within this framework. This could only be resolved if Article 5 were also amended to exclude from its scope not only social security but also youth mobility.

The Commission proposes that the scope of the agreement would cover twelve issues. First, the personal scope would be limited to EU and UK citizens between 18 and 30 years. The period of stay would be four years maximum. There would be no purpose limitation on mobility, young people could study, work or just visit if they want to. There would be no quota on this category. The conditions applicable to the category should apply throughout the individual’s stay. Rejection grounds would be specified. The category would be subject to a prior authorisation procedure (ie specific visa to be obtained before arrival). For UK citizens, their mobility would be limited to the one Member State where they had received authorisation (leaving open the question whether the periods for be cumulative or consecutive in different Member States). Equal treatment in wages and working conditions as well as health and safety rules must be respected on the basis of non-discrimination with own nationals. This may also include some aspects of education and training, tax benefits etc. In particular, equal treatment as regards tuition fees for higher education is planned. This would mean that EU students seeking to study in UK universities under the youth mobility scheme would only pay home student fees which are dramatically cheaper than overseas student fees which are currently applicable. Interestingly, the Commission proposed that this home student fee provision should apply to all EU students in the UK including those who arrive on student visas rather than youth mobility ones. The UK’s ‘healthcare surcharge’ would also be waived for this category. Finally, the conditions for the exercise of family reunification would need to be specified.

The Commission plans that any youth mobility scheme should be without prejudice to other legal pathways for migration and EU rules on permanent or long-term resident status.

For the EU, such a youth mobility scheme between the UK and the EU would add to an already rather complex field of EU competences. The Students and Researchers’ Directive covers conditions of entry and stay for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. This would certainly cover quite a lot of what is planned for youth mobility. However, the Commission appear not to be keen on using Article 79 (2) (a) and (b) TFEU, the basis of that directive for the purposes of this initiative. One of the reasons is that all the categories of persons covered in that directive need a sponsor (which could be a university, an employer or a training institution) within a Member State who is saddled with a variety of obligations regarding the third country national to ensure that they comply with general immigration conditions. Such a sponsorship approach is not intended by the Commission for UK-EU youth mobility. Further the Commission’s objective is to achieve reciprocity between the parties and non-discrimination among the Member States and their nationals. This is not an element of the directive. Thus, a new agreement seems to be the preferred approach – the Commission appears to prefer the ‘free movement’ approach rather than the sponsored one. Yet, as mentioned above, if the objective is to provide legal certainty to Europe’s young people regarding moving between the EU and the UK, the TCA does not seem to be an appropriate tool either as it specifically rejects that legal certainty by denying the right to individuals to rely on its provisions before the authorities or courts of the parties.

At the time of writing, it is unclear how the Council will approach this proposal. There are indications that some Member States may not be enthusiastic (Hungary is one) worrying that their skilled young people may be enticed to go to the UK rather than staying at home. But the majority appears to be very positive towards any move to normalise mobility between the two parties.

1. Introduction

Air carriers often use clauses which prohibit the assignment of passenger claims. Such clauses have a generic scope but were mainly introduced to deter the assignment of claims under Regulation 261/2004 on air passenger rights (Air Passenger Rights Regulation – APRR) to commercial companies. The fairness of such clauses under the Directive 93/13/EEC on Unfair Terms in Consumer Contracts (UCTD) has been disputed. In its judgment in C-173/23 Eventmedia Soluciones SL v Air Europa Líneas Aéreas SAU ECLI:EU:C:2024:295 (Judgment), the European Court of Justice (ECJ) ruled on some aspects of the duty of national courts to assess of their own motion the unfairness of contractual terms in the context of air carriage under the 1999 Montreal Convention on the liability of the international air carrier (MC99).

The MC99 establishes uniform rules on certain aspects of the liability of air carriers for international carriage by air. It is one of the most widespread international conventions and is also open for signature by Regional Economic Integration Organizations, such as the EU (Article 53(2)). The MC99 was signed by the (then) European Community on 9 December 1999 and entered into force on 28 June 2004. Ever since, the MC99 provisions have been an integral part of the EU legal order (C-344/04 IATA and ELFAA, para. 36), save for the provisions on cargo, for which competence rests with the EU Member States. Hence, the ECJ is competent for the interpretation of the MC99 provisions on passengers and luggage.

This post presents the judgment of the ECJ, including its legal background. Subsequently, comments are provided regarding (1) the ex officio assessment of unfairness of contractual terms under the UCTD and (2) the validity of clauses prohibiting assignment of passenger claims under the APRR, according to the case law of the ECJ and national courts. The conclusion of the post evaluates the importance of the judgment for the analysed topics.

2. Facts and legal background

2.1 Facts

An air passenger suffered a delay in the transport of his baggage on a flight from Madrid (Spain) to Cancún (Mexico). He assigned his claim for damages against Air Europa, an air carrier, to Eventmedia, a commercial company. Eventmedia brought an action against the air carrier before the referring court, i.e., Commercial Court No 1, Palma de Mallorca, Spain.

Air Europa disputed Eventmedia’s standing to bring proceedings, since a clause in the contract of air carriage provided that ‘the rights to which the passenger is entitled shall be strictly personal and the assignment of those rights shall not be permitted’.

The referring court specified that the liability of the air carrier is governed by Article 19 MC99 and deemed the dispute as contractual. Consequently, according to the referring court, the assignment of the claim for damages relating to such a delay fell within the prohibition of assignment established by the clause at issue. The national court, referring to the ECJ case law under the UCTD, was uncertain whether it could examine of its own motion the unfairness of the clause for two reasons. First, the applicant in the proceedings, Eventmedia, was neither a party to the contract of carriage nor did it have the status of a consumer under Article 2(b) UCTD as only natural persons may be ‘consumers’. Second, since the consumer was not a party to the proceedings, the court could not consider the consumer’s intention to rely, after having been informed by that court, on the unfair and non-binding nature of the clause at issue.

2.2 Legal background

According to the settled case law of the ECJ (e.g. C-567/13 Baczó and Vizsnyiczai, paras 40-42;  C-377/14Radlinger and Radlingerová, para. 48), in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. On that basis, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).

Regarding the principle of effectiveness, the ECJ has combined it with the effective application of Art. 6(1) UCTD. Thus, the Court has repeatedly held that national courts are required to assess of their own motion whether a contractual term falling within the scope of the UCTD is unfair, to compensate for the imbalance which exists between the consumer and the seller/supplier, where the courts have available to them the legal and factual elements necessary to that end (C-243/08 Pannon GSM, paras 22-24, 32; C-377/14 Radlinger and Radlingerová, para. 52).

Nonetheless, the ECJ has also clarified that national courts, in carrying out that obligation, should inform the consumer of the consequences of the potential unfairness of the term, namely that the term is invalid and that such invalidity may affect the validity of the whole contract under Article 6(1) UCTD (C-269/19 Banca B., para. 29). In this regard, national courts should account for the possibility that the consumer may decide to not assert the unfair status of the term (C-243/08 Pannon GSM, para. 33).

3. Issues

Two questions were referred to the ECJ by the national court.

First, whether the national court was required to examine of its own motion the unfairness, under Articles 6(1) and 7(1) UCTD, of a clause that prohibits the assignment of passenger claims against the air carrier, where a claim has been brought against the latter by a commercial company as an assignee of that passenger’s claim.

Second, if the answer to the first question is affirmative, could the court disregard its duty to inform the passenger of the consequences of the unfairness, given that in the case at hand there was no ‘consumer’ litigating?

4. Judgment

4.1 Preliminary issue

As a preliminary issue, the ECJ clarified that the applicability of the UCTD to a dispute depends on the capacity of contractual parties, not on the capacity of the litigants. Hence, the fact that the litigation in question was between two commercial entities did not exclude the dispute from the scope of the UCTD, since the contract of carriage had been concluded between the air carrier and a natural person who was (seemingly) acting outside his professional capacity (paras 17-26).

4.2 On the first question

Proceeding to answer the first question referred to it, the ECJ observed that the UCTD aims at protecting consumers vis-à-vis sellers/suppliers on the premise the consumers are in an inferior position regarding their knowledge and bargaining power (para. 27). The UCTD aims at restoring such imbalance by rendering unfair contractual terms not binding on consumers (para. 28).

The Court then referred to its established case law on the duty of national courts to examine of their own motion the unfairness of contractual terms in consumer contracts. Such a duty is based on the effective application of Art. 6(1) UCTD(paras 28-29). Moreover, it is based on the principle of effectiveness in the context of the procedural autonomy of the EU Member States under Art. 7(1) UCTD, notwithstanding the principle of equivalence (paras 30-32).

Regarding the principle of equivalence, the ECJ reiterated that Article 6(1) UCTD ranks equally with domestic rules of public policy. Whether a national court has a duty to assess ex officio the unfairness of a term under the UCTD depends on whether that court, under national procedural rules, has discretion or an obligation to examine ex officiothe violation of national rules of public policy (paras 33-35). This is for the national court to ascertain (para. 36).

As to the principle of effectiveness, the ECJ observed that, in the case at hand, there was a dispute between two commercial entities. Thus, there was no imbalance of power and knowledge between them. As a result, there was no duty of the national court to examine of its own motion the potential unfairness of the clause in question (paras 38-39). In addition, the principle of effectiveness does not require an ex officio assessment of the unfairness of the term, if the legal entity as an assignee has or had, under the national procedural rules, a genuine opportunity to rely on the unfairness of the contractual clause (para. 40).

4.3 On the second question

The ECJ observed that the second question regarded the right of each litigant to a fair hearing. This entitles each party to the litigation to be informed of the issues that the court has raised of its own motion and provide its views thereon (paras 44-45). Thus, if the national court ex officio finds a contractual term to be unfair, it must notify the litigation parties thereof, and provide them with the opportunity to present their views and refute the views of the other party (para. 46). In this way, the national court also fulfils its duty to consider the potential consent of the assignee to the use of the term in question despite its unfairness (para. 47) – although this was obviously not the case in the present proceedings (para. 48). On the contrary, the national court did not have to inquire the consumer’s opinion since the consumer was not a party to the dispute (para. 49).

5. Comments

This judgment provides helpful guidance on the duty of the national court to assess ex officio the unfairness of a contractual term. Moreover, it is interesting to compare this judgment with the ECJ judgment in C-11/23 Eventmedia Soluciones regarding the validity of such clauses under the APRR.

5.1 Ex officio assessment of unfairness

The judgment reveals two aspects of the assessment of unfairness under the UCTD: a substantial and a procedural one. Both aspects are influenced by the imbalance between the consumer and the seller/supplier, which lies at the core of the UCTD and which national courts are required to restore by positive action (C-240/98 to C-244/98 Oceano Grupo and others, para. 25). At the substantial level, national courts must declare an unfair term non-binding to the consumer and, at the procedural level, they must assess of their own motion the unfairness of the terms relevant to the dispute. Hence, the substantial and procedural aspects are distinct, albeit interconnected (see Judgment, para. 24).

The substantial aspect relates to the scope of the UCTD and the criteria of unfairness. As a result, it is immaterial for the applicability of the UCTD whether the parties to the litigation are legal entities, as long as: (1) the contract has been concluded between a seller/supplier and a ‘consumer’ (Judgment, paras 17, 24-25); and (2) one party to the litigation is an assignee of a consumer or an organisation having a legitimate interest under national law in protecting consumers (UCTD, Article 7(2)).

The duty to an ex officio assessment is a procedural issue. It accounts for the fact that  consumers may be unaware of the potential unfairness of contractual terms or incapable of invoking them, because they deem their participation to the trial unworthy in view of the high litigation cost compared to the value of the dispute (C-240/98 to C-244/98 Oceano Grupo and Salvat Editores, para. 26). In principle, this duty of the national court arises only if the consumer participates in the litigation as a plaintiff or a defendant, because in such cases the substantial imbalance of the contractual parties is transferred to the litigation level. However, there are cases in which a legal entity is a litigant in the place of the consumer, by means of assignment from the consumer or because it has legitimate interests in protecting consumers. In such cases, the ECJ considers that there is no imbalance between the litigants as a procedural issue (C-413/12 Asociación de Consumidores Independientes de Castilla y León, paras 48-50;  Judgment, para. 38). The ECJ bases such view on purely formal criteria: ‘consumers’ are natural persons acting outside their trade or profession and are irrefutably deemed to have limited knowledge and experience (see C-110/14 Costea, paras 16-18, 20-21, 26-27); whereas a legal entity is irrefutably considered to be more sophisticated and does not need such a high level of protection.

Concerning the capacity of ‘consumer’, the ECJ seems to apply a kind of presumption in favour of such capacity, when a natural person contracts a commercial entity. In the absence of evidence to the contrary, natural persons are deemed to have acted outside their professional capacity (C-519/19 Delay Fix, para. 56; Judgment, para. 19). However, such evidence needs to be strong and not based on isolated factors (see C-774/19 Personal Exchange International, paras 49-50).

Nonetheless, in exceptional cases, the national court may be under a duty to assess ex officio the unfairness of a contractual clause, although no ‘consumer’ is party to the litigation. As the Court notes in para. 40 of its Judgment, such a duty exists also when the assignee, despite being a commercial entity, had no ‘genuine opportunity’ to raise the issue of unfairness. This refers to the rights of the assignee under national law. That might be the case, if e.g. under national law the assignment did not include the whole contract of air carriage, but only a part of it, and the clause prohibiting the assignment had not been part of the assignment (see C-519/19 Delay Fix, paras 47, 63). The reason for this exception likely lies in the close connection between the substantive and procedural aspects of the consumer rights under the UCTD.

5.2 Validity of clauses prohibiting assignment of passenger claims under the Air Passengers Rights Regulation

Many air carriers have introduced clauses prohibiting the assignment of passenger claims to third parties. Although such clauses usually have a generic scope, air carriers had in mind mainly claims based on the APRR when they introduced them. This Regulation, among others, provides for compensation to passengers in cases of cancellations of flights and denied boarding of passengers (Articles 4(3) and 5(1)(c) APRR). The ECJ has interpreted the Regulation as providing such a right also in cases of delays in arrival to the final destination exceeding three hours. The amount of compensation is standardised and depends on the distance of the flight to its final destination (Article 7 APRR). The standardised compensation amounts, combined with the very limited possibilities of exclusion of the carrier liability (Article 5(3) APRR), has led to the creation of commercial entities, to which passengers may assign their claims and which undertake to enforce passenger claims before national courts against a percentage from the compensation received (contingency fee, see here for an overview). This has resulted in a significant increase of passenger claims against air carriers, which has increased the cost of carriers regarding the amounts paid not only for compensation but also for judicial costs. Air carriers have reacted by introducing non-assignment clauses in their contracts with passengers.

Regarding passenger claims based on the APRR, national courts have assessed under the UCTD, on a number of occasions, the unfairness of clauses prohibiting assignment. The results have been mixed. The main issue in the proceedings has been whether the prohibition of assignment obstructs the passenger’s (or consumer’s) route to compensation, including access to courts. In England, the Court of Appeals affirmed the judgment of the trial judge, who found such clause to be fair (Bott and Co Solicitors Lyd v Ryanair DAC [2019] EWCA Civ 143, at [71]-[73], reviewed on other grounds [2022] UKSC 8). On the contrary, in Germany, such clauses have been found unfair in a long line of case law (e.g. LG Nürnberg-Fürth, 30.7.2018; LG Frankfurt am Main, 25.11.2021), including the Federal Court of Justice (BGH 1.8.2023, paras 8, 10, 14, affirming LG Memmingen, 28.9.2022, para. 14).

Earlier this year, the ECJ already clarified, in C-11/23 Eventmedia Soluciones (paras 39-46),  that clauses prohibiting assignment of claims based on the APRR are invalid under Article 15 of the Regulation, which prohibits any limitation of passenger rights. Hence, the discussion on the unfairness of such clauses under the UCTD has no practical importance to the APRR. The UCTD has practical importance, however, for claims under the MC99. Articles 29 and 33(4) MC99clarify that issues of legal standing are governed by the domestic law of the contracting States, which, in the context of EU law, entails the applicability of the UCTD.

6. Conclusion

In conclusion, the present judgment is noteworthy, because it clarifies important aspects of the duty of national courts to assess of their own motion the unfairness of contractual clauses under the UCTD. Moreover, combined with case law of the ECJ and the national courts on the APRR, it sheds some light on the application of the UCTD to passenger claims under the MC99.