EU General Court rules for the first time on financial consequences of alleged irregularities regarding a former member of the EU Court of Auditors

 

 

Alessandro Nato* and Camilla Ramotti**

 

*Associate Professor in European Union law, University of Teramo

**Postdoctoral Research Fellow in Administrative Law, Luiss Guido Carli, Rome

 

Photo credit: Cedric, via Wikimedia Commons

 

 

1.     Introduction

 

The role of EU institutions and officials in managing and protecting Union funds remains a relatively underexplored area within European legal scholarship. For this reason, the present post will address this specific issue, investigating case-law that evaluates how effectively EU institutions handle supranational public finances.

 

On September 11^th, 2024, in its Judgment in Case T-386/19, CQ v Court of Auditors, the General Court of the European Union partially annulled a decision concerning CQ, a former Member of the European Court of Auditors (ECA).

 

The dispute arose from an action brought by CQ against the ECA on June 24^th, 2019, in which the applicant requested, in essence, that the Court: (i) declare the action admissible and well-founded; (ii) annul the decision of the Secretary General of the Court of Auditors of April 11^th, 2019, which classified the sum of € 153,407.58 as an undue payment and order the recovery of that amount, plus interest at a rate of 3.5% from May 31^st, 2019.

 

CQ had served as a Member of the Court of Auditors from March 1^st, 2006 until April 30^th, 2018, completing two terms of office. Prior to his appointment, CQ had held various political roles in the Kingdom of Belgium dating back to the 1980s. During his tenure at the Court, he was assigned to the section responsible for auditing EU expenditure related to external relations, enlargement, and humanitarian aid.

 

In 2016, the Court of Auditors received information regarding several serious irregularities allegedly committed by CQ, who was informed of these allegations in July 2016, which he has consistently denied.

 

In October 2016, the Secretary-General of the Court of Auditors referred the matter to the European Anti-Fraud Office (OLAF), concerning activities by CQ that had led to potential undue expenditure being charged to the EU budget. OLAF subsequently decided to initiate an investigation and, in March 2017, the Director-General of OLAF formally notified the President of the Court of Auditors of the opening of an investigation into potential irregularities involving CQ. These included allegations of misuse of the Court's resources, breaches of applicable rules concerning official missions, and matters affecting the financial interests of the Union.

 

Following several exchanges of information and documents between OLAF and CQ, the Court of Auditors received OLAF’s final report, which concluded that CQ had misappropriated resources of the Court in connection with activities unrelated to his official duties. The report found that CQ had improperly used fuel cards, misused the insurance policy for his official vehicle, been absent from work without justification, failed to declare external activities, disclosed confidential information, and been involved in a conflict of interest.

 

Meanwhile, the Court of Auditors had sought to recover the full contested sum of over €157,000 for the irregularities attributed to CQ. CQ paid this amount but simultaneously lodged an action before the General Court of the European Union seeking the annulment of the recovery decision and compensation for non-material damage allegedly suffered.

 

 

2.              The protection of Eu’s financial interests

 

In Case T-386/19 (for further comments, see EU Law Live Blog and BETKONEXT Newsletter n. 2/2024) the General Court found that the OLAF investigation had not uncovered evidence of all the alleged irregularities. The Court also concluded that the ECA’s decision to recover the sums in question was sufficiently reasoned and well-founded.

 

On the merits, the General Court held that although five years had elapsed between the facts in question and the establishment of the financial entitlements, the majority of the claims were not time-barred, as the ECA could only have identified the relevant sums after OLAF’s investigation was concluded.

 

Moreover, in relation to the allegations concerning breaches of procedural safeguards, the Court found that it could not be excluded that the applicant had been afforded a sufficient opportunity to be heard on the relevant elements, even those he could not comment on prior to OLAF’s report. Given the absence of any new or concrete evidence to the contrary, and the applicant’s ability to raise such matters during the written stage of the proceedings, the plea was rejected as unfounded.

 

The Court further determined that a significant proportion of CQ’s meetings with politicians were unrelated to his duties as a Member of the Court of Auditors, rendering the expenses associated with those meetings irregular. However, finding that certain claims were time-barred and that certain mission and representation expenses, along with costs related to CQ’s driver, were legitimate, the Court annulled part of the recovery decision.

 

Ultimately, the General Court set aside certain aspects of the ECA’s recovery decision.

 

It ruled that several claims were indeed time-barred and that some of the mission and representation expenses, as well as driver-related costs, were valid. Consequently, the General Court partially annulled the ECA’s decision, reducing the contested amount by €19,254.20, while rejecting most of CQ’s claims.

 

Regarding CQ’s claim for compensation, the General Court held that there was insufficient evidence to establish that the ECA’s actions caused direct damage to his reputation or that it was responsible for the unauthorized disclosure of information.

 

 

3.              Damage compensation

 

In the CQ case at hand, the plaintiff sought compensation of 50,000 euros, claiming that he had suffered serious damage to his career and reputation from the dissemination of information related to an OLAF investigation. According to him, the ECA had violated the presumption of innocence by disseminating elements suggesting his responsibility before he was formally informed. He disputes that the report was forwarded to third parties (members of the Court and Parliament) before him, and that the press was able to publish its contents as early as July 11, 2018. On the same day, the Court issued an internal briefing note, according to the appellant, reinforcing the perception of guilt.

 

The criticism levelled at the Court of Auditors was thus twofold: on the one hand, there would have been an active tortious behavior - the disclosure of information not yet known to the person concerned, in a context that suggested liability; on the other hand, an omission - the failure to activate an internal investigation to identify the source of the leak. The Court responded by first raising a plea of inadmissibility on grounds of procedural defect, holding that the claim for compensation could not be brought in the context of an action for annulment (Article 263 TFEU), but only through an autonomous action based on Articles 268 and 340 TFEU.

 

However, the same Court later recognized that, in principle, it is possible to cumulate claims for annulment and compensation within the same proceeding, provided certain formal requirements are met. In this case, however, it was held that the plaintiff had not adequately substantiated, from the outset, the grounds for the Union’s non-contractual liability.

 

On the merits of the case, the Court rejected allegations of infringement of the presumption of innocence and the principle of good administration, finding that the internal communication of July 11, 2018, was after the publication of the news by the press, which occurred as a result of a leak from an anonymous source.

 

However, this reconstruction raises several questions. The fact that the Court reacted with communications directed within the institution, even after the newspaper article came out, does not rule out the possibility that these communications contributed to consolidating a negative portrayal of the plaintiff. The strongest objection relates precisely to the principle of impartiality: even in the presence of a leak that cannot be attributed to the administration, the latter remains bound to prudent and neutral management of information, particularly when the person concerned has not yet been put in a position to formally know the acts that concern him or her. The principle of good administration requires not only transparency and timeliness, but also balance in communication, especially when it affects personal rights.

 

The Court also dismissed the failure to launch an internal inquiry, citing no obligation to do so. Yet, even without a binding rule, confidentiality and administrative accountability could justify such action. In a rule-of-law framework, institutional inaction can also entail liability. Furthermore, the Court rejected the claim for failing to establish wrongful conduct — the first condition for non-contractual liability — making examination of damage and causality unnecessary. Legally consistent, this outcome nonetheless raises doubts about the actual protection of fundamental rights and principles in EU administrative action.

 

 

4.              Concluding remarks 

 

The CQ v. Court of Auditors case is a significant test in assessing the effectiveness of judicial protection with respect to the protection of the Union’s financial interests. The case highlights a latent tension between two fundamental requirements: on the one hand, the need to respect the procedural guarantees of the person involved; on the other, the imperative to effectively protect the integrity of the EU budget.

 

In this delicate balance, the ruling ends up downplaying the proactive role and responsibility that institutions should assume in preventing and dealing with irregularities. The fact that CQ’s conduct resulted in a misuse of public funds that was not contested in substance, but only partially acknowledged for procedural reasons, raises questions about the level of diligence and control exercised by the European institution.

 

However, this case law cannot be viewed in isolation. On 28 April 2025, the Official Journal of the European Union published a summary of an action for annulment brought by the European Public Prosecutor’s Office (EPPO) before the Court of Justice (case T-99/25, lodged on 10 February 2025) pursuant to Article 263(4) TFEU. In that action, the EPPO challenges the decision adopted by the European Court of Auditors on 9 December 2024, denying the authorization to hear certain staff members as witnesses in an ongoing criminal investigation into alleged wrongdoing within the same institution. The investigation, launched at the end of 2022 following a report from the European Anti-Fraud Office (OLAF), concerns facts that potentially constitute offences affecting the financial interests of the Union.

 

According to the EPPO, the repeated refusal by the Court of Auditors to cooperate—first by denying access to its electronic archives, then by refusing to lift immunity and finally by preventing witnesses from testifying—has obstructed the investigation and hindered the EPPO’s ability to determine whether the allegations should lead to prosecution. Under the EU Staff Regulations, authorization from the institution is required for staff members to testify about matters known to them in the exercise of their duties. However, as clarified by the Court of Justice, such authorization may only be withheld in cases where the Union’s “interest of considerable importance and vital to the Union” is at stake. The EPPO argues that this condition clearly does not apply in the present case.

 

Taken together, these two cases—one dealing with individual financial responsibility, the other with institutional resistance to judicial cooperation—reveal a deeper tension within the EU legal and governance system: the challenge of ensuring both personal accountability and institutional transparency in the management and protection of EU public funds. On the one hand, the EU seeks to recover unduly paid amounts from former members of its institutions; on the other, it encounters systemic obstacles when a key institution refuses to cooperate with its own prosecutorial authority.

 

This duality exposes a structural concern. When an EU institution can, in effect, block a criminal investigation by withholding key testimonies, it undermines the very logic of interinstitutional checks and the role of the EPPO as an independent prosecutorial body. Such conduct raises fundamental questions about the coherence of the EU’s system for protecting the rule of law and financial integrity. More broadly, it calls into question whether the principle of sincere cooperation—enshrined in Article 13(2) TEU—is being fully respected when institutional interests are perceived to outweigh those of justice and public accountability.

 

In conclusion, the CQ v. Court of Auditors case and the EPPO’s appeal in T-99/25 highlight the growing need for a systematic reflection on how to ensure both individual and institutional accountability within the EU legal framework. At a time when the Union is managing unprecedented levels of public expenditure—particularly through instruments such as Next Generation EU—it is essential to ensure that mechanisms for oversight, enforcement, and judicial cooperation are not only available in theory, but fully operational and unobstructed in practice. A deeper and more critical exploration of these legal and institutional dynamics—across academia, jurisprudence, and policymaking—is not merely advisable: it is imperative. In a context where EU funds are increasingly significant and politically sensitive (i.e. Next Generation EU), opaque management by officials can undermine public trust and the effectiveness of the protection of the Union’s financial interests.

 

 

Misreading the Temporary Protection Directive? The CJEU sets the record straight on access to subsidiary protection in Framholm (C-195/25)

 

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

 

Photo credit: Dietmar Rabich, Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219, CC BY-SA 4.0

Framholm (C-195/25), delivered on 20 November 2025, is the Court of Justice’s third ruling interpreting the Temporary Protection Directive (Council Directive 2001/55/EC, TPD) following Joined Cases C‑244/24 and C‑290/24 (Kaduna) (cf. analysis here), and Case C‑753/23 (Krasiliva) (cf. analysis here). The ruling provides further clarification of Articles 3, 17 and 19 of the TPD and, crucially, confirms that temporary protection does not exclude access to subsidiary protection, ie the type of international protection available for those who do not qualify for refugee status. It therefore marks an important step in aligning the TPD, an instrument drafted in 2001, with the contemporary Common European Asylum System (CEAS).

The reference for a preliminary ruling to the Court of Justice originated in Sweden, where several third-country nationals displaced from Ukraine were granted temporary protection and subsequently applied for subsidiary protection. For years, the Swedish Migration Agency (Migrationsverket) had maintained a practice of automatically rejecting subsidiary protection applications lodged by temporary protection beneficiaries, without any examination on the merits. It interpreted Swedish law as allowing temporary protection beneficiaries to apply only for refugee status and treated all subsidiary protection applications as per se inadmissible. Faced with this restrictive and legally questionable approach, the Göteborg Administrative Court for Immigration Matters asked the CJEU whether EU law really permits a Member State to deny access to subsidiary protection solely because the applicant already enjoys temporary protection. The Court’s answer is unequivocal: No.

1.    What is the case about?

 On 11 March 2025, the Göteborg Administrative Court for Immigration Matters referred questions to the CJEU concerning whether beneficiaries of temporary protection may apply for subsidiary protection under the Qualification Directive (or QD – which defines refugee and subsidiary protection status in the EU) and have that application examined on the merits. All applicants (a Nigerian national holding a permanent residence permit in Ukraine and his Ukrainian family members) had been displaced from Ukraine following the Russian invasion and were granted temporary protection in Sweden. When they applied for international protection, the Migration Agency rejected their refugee status applications but declared their subsidiary protection claims inadmissible solely because they already held temporary protection. No assessment of eligibility under Article 15 of the QD (ie the definition of subsidiary protection) was undertaken. The referring court rightly doubted whether such a blanket exclusion could be reconciled with the development of EU asylum law since 2001, which clearly conceptualises “international protection” as including both refugee status and subsidiary protection. (cf. The Judgment paras 28-37)

2.     The questions referred to and the Court’s short answers

The Göteborg Court referred four questions to the CJEU (OJ C/2025/2651, 19 May 2025), all centred on how temporary protection interacts with the CEAS:

1.    Do the QD and the Asylum Procedures Directive 2013/32/EU (APD) apply to international protection applications lodged by persons already benefiting from temporary protection under the TPD? Yes.

2.    a) Does the term “application for asylum” in Articles 17(1) and 19(2) of the TPD cover applications for both refugee status and subsidiary protection, and must such applications be examined under the QD and APD? Yes.
b) Does Article 3(1) of the TPD prevent Member States from recognising subsidiary protection for persons who are eligible for, or already enjoying, temporary protection? No.

3.    If Articles 17(1) and 19(2) of the TPD also cover the right to apply for subsidiary protection status under the QD, are those articles, in conjunction with Article 10(2) of APD, sufficiently clear and precise to have direct effect?  Yes, and kind of yes (the Court said the QD and APD provisions have direct effect, but did not say that the TPD provisions alone have direct effect)

4.    Is Swedish law, which allows temporary protection beneficiaries to apply only for refugee status (but not subsidiary protection), compatible with EU law? No.

3.    What are Articles 3, 17 and 19 of the TPD about?

Article 3(1) of the TPD makes clear that temporary protection does not prejudge refugee status under the Refugee Convention. It is not a derogation from the Refugee Convention, nor does the grant or expiry of temporary protection affect the substantive assessment of whether an applicant meets the refugee definition.  

Article 17 of the TPD guarantees that beneficiaries of temporary protection may lodge an asylum application at any time and provides that any applications still pending when temporary protection ends must be assessed and decided hereafter.

Article 19 of the TPD regulates the interaction between temporary protection and the asylum procedure: Article 19(1) allows Member States to decide that a person cannot simultaneously hold the status of “asylum seeker” and benefit from temporary protection while their asylum application is being examined. Whereas Article 19(2) ensures continuity of protection: if, after examining an asylum application, the authorities do not grant refugee status or another form of protection, the person must still be allowed to enjoy temporary protection for the rest of the designated duration. (Cf. for a detailed commentary on these articles Skordas’ chapter; Peers’ post; Ch. 5 of my book)

4.    The AG Opinion (which I fully agree with)

The Advocate General’s analysis is worth examining closely, not least because it is carefully constructed and has clear implications for how the TPD must be read today. His reasoning develops along five points.

First, AG interprets Article 17(1) TPD’s reference to an “application for asylum” as an application for international protection, encompassing both refugee status and subsidiary protection. Although the TPD predates the CEAS, it must now be read in light of Article 78(2) TFEU, which is a Treaty provision on asylum (AG Opinion, paras 49-58). He adds “A restrictive understanding of the term ‘asylum’ in Article 17(1) of Directive 2001/55 would fail to take into account the context in which that directive applies following the entry into force of the FEU Treaty, as well as the objectives and scope of the legislation concerning ‘international protection’ which has been adopted in the intervening period.”  (para 50)  

Secondly, the AG stresses that temporary protection does not suspend or exclude access to subsidiary protection. Beneficiaries of temporary protection may lodge applications for refugee or subsidiary protection “at any time,” and the TPD operates as a complement, not an alternative, to the individual assessment required under the Qualification Directive (AG Opinion, paras 43-45, 51-52, 59-61, 66).

Thirdly, he confirms that being a temporary protection beneficiary is not a lawful ground of inadmissibility or exclusion. The exhaustive lists in Articles 12 and 17 of the QD (on grounds for excluding people from refugee or subsidiary protection status) and Article 33(2) APD (grounds for inadmissibility of asylum applications) do not include temporary protection, and national authorities cannot refuse subsidiary protection applications on that basis (AG Opinion, paras 70-72, 78-81).

Fourthly, he accepts that Member States may postpone examination of international protection applications in mass influx situations but makes clear that this administrative flexibility cannot justify a blanket inadmissibility rule for all subsidiary protection applications lodged by temporary protection beneficiaries (AG Opinion, paras 73-80, especially 7-78, 86).

Finally, he concludes that Article 17(1) TPD (not Article 19), read together with the overall CEAS architecture, confers a sufficiently clear and directly effective right to lodge an application for international protection.  

5.    What did the Court say?

The Court’s reasoning proceeds in three clear steps.

First, the Court explains that nothing in Articles 3, 17 or 19 TPD authorises Member States to refuse to examine a subsidiary protection claim simply because the applicant enjoys temporary protection (paras 45-46). Article 19(2) even anticipates the existence of “other kinds of protection,” which must be read today as encompassing subsidiary protection (para 46). The omission of subsidiary protection in the TPD text reflects only the fact that this status did not yet exist in EU law, a point that AG raised. (paras 46-47).

Secondly, the Court turns to the purpose and logic of the TPD. Temporary protection is designed to ensure immediate, time-limited protection while preserving the “effective possibility” of receiving international protection (paras 47–49). Here the Court explicitly follows its reasoning in Joined Cases C‑244/24 and C‑290/24 (Kaduna), where it held that “the purpose of the temporary protection mechanism is, inter alia, to maintain the efficient operation of the international protection system in the Member States” and that the TPD “safeguards, in particular, the effective possibility for third-country nationals and stateless persons benefiting from temporary protection" of obtaining international protection following an appropriate examination of their individual situation” (Kaduna, paras 125 and 127). A national rule excluding subsidiary protection applications as such would therefore contradict the very objective of the TPD (paras 49–50).

Thirdly, and most decisively, the Court relies on the architecture of the CEAS. It emphasises that the QD establishes two forms of international protection – namely, refugee status and subsidiary protection – and that Member States must grant whichever status an applicant qualifies for (paras 51–54). Member States have no discretion to refuse subsidiary protection except on the exclusion grounds exhaustively listed in the Qualification Directive (para 54). The Asylum Procedures Directive reinforces this: an application may be declared inadmissible only on the five grounds set out in Article 33(2) APD, which must be interpreted strictly (paras 58–60). Temporary protection is not among these grounds; national authorities, therefore, cannot reject a subsidiary protection application solely because the applicant enjoys temporary protection (para 61).

Finally, the Court addresses the direct-effect question. The Swedish court had essentially asked whether Articles 17(1) and 19(2) of the TPD, if interpreted as including the right to apply for subsidiary protection, are sufficiently clear and precise, read together with Article 10(2) of the APD, to have direct effect. The CJEU reformulates the issue. Rather than grounding the direct effect in the TPD itself, the Court bases it on two CEAS provisions: Article 18 of the QD, which imposes an unconditional duty to grant subsidiary protection when criteria are met, and Article 33 of the APD, which exhaustively lists the admissibility grounds (paras 71-72). These provisions are both unconditional and sufficiently precise, and thus confer directly effective rights. The consequence is clear: if a national rule conflicts with these obligations and cannot be interpreted in conformity with EU law, domestic courts must disapply the national provision (para 73).

That said, the Court’s approach leaves an important ambiguity unresolved. The referring court had explicitly asked whether Articles 17(1) and 19(2) of the TPD, read together with Article 10(2) APD (which governs the relationship between refugee and subsidiary protection status applications), were sufficiently clear and precise to have direct effect. Instead of answering that question squarely, the Court effectively sidesteps it by grounding direct effect not in the TPD at all, but in Article 18 QD and Article 33 APD. Put simply, the judgment does not tell us whether Articles 17(1) and 19(2) of the TPD are capable of producing direct effect. 

6.    My analysis

The AG’s Opinion and the Court’s judgment reach the same legal outcome, but they do so through markedly different interpretative routes. The Advocate General adopts a more TPD-centred approach, grounding his analysis in Articles 3, 17 and 19 of the TPD and then interpreting these provisions in light of later CEAS instruments. He reads “asylum application” in Article 17 as an application for international protection covering both refugee status and subsidiary protection, emphasises that temporary protection cannot suspend or exclude access to subsidiary protection, and rejects temporary protection as a lawful ground of inadmissibility because it does not appear in the exhaustive list in Article 33(2) of the APD. Although he accepts that Member States may postpone international protection application examinations in mass influx situations, he stresses that a blanket ban on subsidiary protection applications is incompatible with the TPD and the CEAS.

By contrast, the Court relies primarily on the Qualification Directive and the Asylum Procedures Directive, using the CEAS instruments themselves as the main foundation for each key step. It interprets “asylum application” in light of the QD and APD definitions of international protection, derives the duty to grant protection from Article 18 of the QD and the obligation to examine claims (and the limits on inadmissibility) from Articles 10(2) and 33 APD, and treats Article 33(2) of the APD as an exhaustive rule that excludes any TP-based inadmissibility ground (paras 58-60). On the direct effect, the Court bases its analysis on Article 18 of the QD and Article 33 of the APD (paras 70-73), whereas the AG reaches the same conclusion via a combined reading of Article 17 of the TPD with the CEAS provisions.

Compared to the AG’s Opinion, which engages more directly with the wording, structure and logic of the TPD, the Court reaches essentially the same conclusions but grounds its reasoning far more firmly in the QD and APD. Put differently, while the AG reads the TPD through the lens of the CEAS, the Court treats the CEAS instruments themselves as the primary legal basis for explaining why Member States cannot refuse to examine (and, where appropriate, must grant) subsidiary protection to temporary protection beneficiaries.

I must admit that I prefer the AG’s TPD-centred approach: it is more faithful to the architecture of the TPD, and does not treat the TPD as a second-rate asylum instrument because it has never been updated to reflect two decades of CEAS development.

The outcome of the judgment is fully in line with what many of us working on the TPD have long expected. The TPD was never intended to operate as an obstacle to accessing international protection, whether refugee status or subsidiary protection. For over a decade, “international protection” in EU law has included both statuses, and nothing in the Directive suggested a closed or self-standing regime intended to override the CEAS.

The central logic of the TPD has always been pragmatic: to give Member States facing a mass influx breathing space by allowing them to suspend the processing (not lodging) of asylum claims where their systems would otherwise be overwhelmed. It was and never has been designed to bar access to subsidiary protection altogether. Member States with fewer temporary protection beneficiaries, or with sufficiently strong asylum systems, remain entirely free to process claims during temporary protection and examine the merits of their international protection applications.

Interpreting the TPD in the restrictive and literal manner adopted by the Swedish administration, treating “asylum” in the TPD as excluding subsidiary protection and ignoring the subsequent development of EU asylum law, was therefore misguided. It runs counter to the TPD’s objectives, its underlying logic, and the entire evolution of the CEAS. Most importantly, it results in a clear violation of the rights of temporary protection beneficiaries to access international protection.

This judgment matters well beyond Sweden. Even if Sweden appears to be the only Member State to have openly applied such a blanket rule, Framholm makes clear that no Member State may treat temporary protection alone as a ground for declaring subsidiary protection applications inadmissible. Across the EU, temporary protection can never justify a blanket refusal to examine the merits of a subsidiary protection claim.

7.    Conclusion

Framholm matters because it definitively closes the door on any national attempt to use temporary protection as a barrier to subsidiary protection. The judgment also exposes a broader structural problem: the Temporary Protection Directive, drafted in 2001, simply do not reflect the legal architecture of the CEAS in 2025. This is visible not only in Sweden’s misinterpretation but also in the Court’s need to rely so heavily on the QD and APD to reach a decision rather than the TPD’s own articles.

This brings me to a point that, as far as I am aware, no one else has explicitly raised: we know that the TPD remains useful and conceptually sound as a framework for managing mass influx situations, contrary to the Commission’s initial 2020 proposal to repeal it. Temporary protection works. It has proven its value during the Ukrainian displacement and remains a necessary instrument in the EU’s protection toolbox. Even today, 4.3 million non-EU citizens who fled Ukraine have temporary protection status in the EU. Moreover, the adoption of the Crisis and Force Majeure Regulation does not render the TPD unnecessary or obsolete: the two instruments, although they can be invoked in exceptional mass influx situations, operate on different logics. In my opinion, the Crisis and Force Majeure Regulation, which is based on derogations more than anything, cannot fully substitute for the protection mechanism established by the TPD.

Despite the usefulness of the ongoing relevance of the TPD, the judgment also implicitly makes clear that the TPD urgently requires updating. Many of the problematic national practices stem precisely from the fact, highlighted by the AG, that the TPD is an old instrument, never recast and never aligned with two decades of CEAS development. The result is predictable: legal ambiguities that should no longer exist, and litigation over issues that should be obvious.

I wish to conclude with a call to the EU institutions, above all, to the Commission. Once the current temporary protection regime for Ukrainians comes to an end, the Commission should initiate a targeted revision of the TPD, drawing directly on the lessons of its implementation during the mass displacement from Ukraine and the emerging body of CJEU case law, including Kaduna, Krasiliva and Framholm. An updated TPD can significantly narrow the scope for misinterpretation, perhaps introduce a new and clear time limit, align the instrument with the contemporary CEAS architecture, and prevent further unnecessary litigation on matters that ought already to be legally settled.

From COVID-19 to digital well-being: Precaution in the internal market

Daan Bodson, LL.M in European Union Law, Université Panthéon-Assas (Paris 2)

Photo credit: US Dept of Defense, via Wikimedia Commons

 

Introduction

More than two years after the WHO declared COVID-19 no longer a global emergency, its impact is still felt. Remote work has become routine in many sectors, younger generations speak more openly about mental health, and the pandemic has left its mark on EU law. Faced with extraordinary circumstances, Member States adopted extraordinary restrictions, which in turn prompted courts to revisit how fundamental freedoms like free movement are balanced against public health.

Many of the measures aimed at restricting the spread of the virus involved limiting the free movement of individuals, one of the fundamental rules of the EU legal order. When these restrictions were challenged before the EU courts, both the ECJ and the EFTA Court delivered landmark rulings. For the first time, they brought the precautionary principle squarely into free movement case law.

This contribution revisits that jurisprudence and asks what it means beyond the pandemic. Since neither court confined its reasoning to COVID-19, the question arises: can precaution also justify restrictions in other policy fields marked by scientific uncertainty? I argue that Nordic Info (C-128/22, 5 Dec 2023) and LDL (E-5/23, 21 Mar 2024) lowered the threshold for Member States to justify restrictions under the precautionary principle, and that this reasoning can also support measures against mental health risks from social media usage.

 

The case law: Nordic Info and LDL

Setting the stage: National measures aimed at limiting the spread of COVID-19

On December 5th of 2023, the ECJ rendered its Nordic Info judgement, in which it ruled on the legality of a Belgian measure banning all non-essential travel to “red-listed countries”. These red-listed countries were designated based on epidemiological data available at the time. The national measure was challenged by a travel agency specializing in trips to Scandinavia. In the LDL judgement, rendered by the EFTA Court a few months after Nordic Info, the Court ruled on the legality of a Norwegian law requiring individuals travelling from abroad into Norway to subject themselves to a quarantine period spent in a specific “quarantine hotel”.

Both courts readily classified these measures as restrictions on the free movement of persons under the EU Citizens’ Directive (and its extension to the EEA). This legislation, however, allows for restrictions on grounds of public health (Art. 27 & 29), yet sets some safeguards to these limitations, such as a right to an effective remedy, and a proportionality check (Art. 31).

In both cases, the main legal question thus was whether or not the restrictions were considered proportionate. Remarkably, and for the first time in free movement case law, both courts expressly included the precautionary principle into this proportionality test. This novel introduction could significantly reshape the proportionality assessment in situations where the precautionary principle applies.

Understanding the precautionary principle

The precautionary principle is well-established in EU law. It regularly appears in judgments of both the ECJ and the EFTA Court and informs many policy fields. At its core, the principle provides a legal and policy tool for decision-makers faced with scientific uncertainty combined with potential risks. Where evidence of harm is insufficient, inconclusive, or uncertain, but the stakes are significant, legislators may intervene proactively without waiting for full scientific proof. As the ECJ stated in Nordic Info: “if there is uncertainty as to the existence or extent of risks to human health, a Member State must be able, under the precautionary principle, to take protective measures without having to wait until the reality of those risks becomes fully apparent” (para. 79).

In practice, the principle applies when there are indications of risk but no certainty about its precise magnitude, its long-term effects, or the most effective mitigating measures. In such cases, national or EU legislators retain discretion to determine the level of protection they wish to guarantee. The degree of scientific uncertainty will, however, shape the extent of that discretion: the greater the uncertainty, the broader the space for precautionary action.

This principle features in many fields of EU policy. The TFEU explicitly prescribes that the principle shall guide the EU’s environmental policy. ECJ case law (e.g., C-157/96) and legislation (e.g., regulation 178/2002) has further broadened the scope of application of the principle to all types of risks to environmental, human, animal, or plant health.

The European Commission’s 2000 Communication on the precautionary principle further clarified its scope and criteria. The Communication underlined that the precautionary principle doesn’t allow for arbitrary restrictions. Measures must still comply with broader EU law requirements, such as proportionality, non-discrimination, consistency, examination of costs and benefits and dynamic review. These principles ensure that precaution remains balanced and doesn’t overly interfere with the internal market.

The novelty: introduction of the precautionary principle in free movement case law

Whilst the precautionary principle itself is far from new in the EU legal order, its application in free movement case law in the Nordic Info and LDL cases is new. In both cases, the courts were confronted with a situation of scientific uncertainty: at the time, there was no conclusive knowledge about how COVID-19 spread, how lethal it was, or which measures were most effective. Yet Member States had to act to protect public health. Against this background, the courts held that the precautionary principle applied, granting national authorities wider discretion to define their own level of health protection and to adopt restrictive measures to limit contagion.

Ordinarily, the proportionality test for restrictions on free movement follows three steps:

-          Suitability: the measure must be capable of achieving its stated aim.

-          Necessity: there must be no less restrictive measure that is equally effective.

-          Proportionality stricto sensu: the benefits of the measure must outweigh the rights it restricts.

What changed in these cases is that the precautionary principle softened the evidentiary demands at each stage:

-          Suitability: Instead of requiring proof that the measure was demonstrably effective, it was sufficient that, in light of limited scientific knowledge, the measure appeared reasonably capable of achieving its aim.

-          Necessity: Courts did not demand a fully substantiated comparison of alternatives. A measure passed this step unless it was evident that another, less restrictive option would be equally effective (Nordic Info, para. 90).

-          Proportionality stricto sensu: In the balancing of interests, scientific uncertainty itself tipped the scales in favor of public health. Far-reaching restrictions were upheld even without full certainty as to their effectiveness.

In short, the precautionary principle did not replace the proportionality test but recalibrated it: lowering the threshold of proof and granting Member States greater leeway when acting under conditions of scientific uncertainty.

 

Beyond COVID-19: precautionary principle and digital well-being

The case law on COVID-19 restrictions carries implications well beyond the pandemic itself. Crucially, neither the ECJ nor the EFTA Court confined their reasoning to emergency circumstances, and Advocate General Emiliou even stressed in his Opinion in Nordic Info that the case had to be assessed under the “ordinary” rules of EU law. This suggests that the interpretive shift brought by the precautionary principle is not an exceptional tool for crisis management, but part of the general framework for justifying restrictions on free movement.

This raises a broader question: if precaution can justify far-reaching measures in times of scientific uncertainty about public health, could it also apply in other fields where risks are emerging but not yet conclusively proven? One particularly pressing area is digital well-being. With growing evidence of the mental health risks linked to social media and addictive algorithms, especially for young people, the same legal reasoning could potentially empower Member States to adopt preventive measures.

Social media, addictive algorithms and associated mental health risks

Social media platforms rely on algorithms that continuously predict and adapt to user preferences. By generating personalized feeds designed to maximize engagement, these systems keep users online longer and, in turn, increase advertising revenues.

Growing evidence links such addictive algorithms and the use of social media generally to negative mental health outcomes, particularly among children and adolescents. Users are frequently exposed to harmful content, such as unrealistic body images, and research increasingly associates prolonged social media use with depression, anxiety, body dysmorphia, and even suicidal thoughts.

Because social media is a relatively recent phenomenon, the long-term effects are not yet fully known. Scientific studies are emerging, but uncertainty remains inherent: it is difficult, perhaps impossible, to precisely measure the long-term mental health consequences of algorithm-driven platforms, especially for young people.

The EU has begun to acknowledge these risks. The Digital Services Act (“DSA”) of October 2022 introduces obligations for “very large online platforms and search engines,” requiring them to conduct risk assessments, explicitly covering algorithmic systems, and to implement reasonable mitigation measures. This reflects a policy shift toward more stringent obligations for these large platforms, aimed at enhancing, among other things, user well-being.

The precautionary principle: more space for Member States to act?

Despite the DSA, Member States may wish to go further in protecting citizens’ mental health. Insofar as measures do not interfere with harmonized EU law, Member States can determine their desired level of protection and take adequate measures. In practice, this could mean considering specific obligations on tech manufacturers (e.g., better parental control tools) or even on the accessibility of devices to minors.

National measures in this area are likely to restrict the free movement of services, and possibly freedom of establishment or free movement of goods. Ordinarily, such measures would face steep hurdles, since they would need to be justified and proportionate, which typically was a high bar. However, under the Nordic Info and LDL rulings, Member States now enjoy wider leeway to justify such restrictions. The introduction of the precautionary principle into free movement law means that scientific uncertainty no longer necessarily blocks preventive regulation.

For precaution to apply, three conditions must be present:

-          a potential risk, including mental health risks for humans;

-          scientific uncertainty about its scope or effects, and

-          the absence of full proof or consensus related to the extent of the risk and / or the most suitable mitigating measures.

In the case of digital well-being, these conditions seem to be met. Academic research points to a range of mental health risks from social media use, but the extent of the danger and the precise causal links remain unsure. Member States could take precautionary measures in multiple forms. Even though harmonized EU legislation, such as the DSA, bars Member States from introducing measures within this field, some measures are still imaginable. For example, States could require phone manufacturers to include robust parental control tools by default. Alternatively, Member States could consider a ban on design features such as auto-play or endless scroll for under-16s, or even impose an age limit for the sale of smartphones (as considered by the UK government).

The significance of Nordic Info and LDL is that these measures no longer need conclusive scientific proof to survive judicial scrutiny. It is enough that they seem reasonably appropriate, and that no evident less restrictive alternative exists. In balancing fundamental rights, the courts signaled that precaution may tilt the scales in favor of public health, even when other freedoms, such as free movement of services or freedom to conduct business, are affected.

 

Conclusion

The COVID-19 pandemic was not only an unprecedented test for Europe’s health systems, but it also challenged the boundaries of EU law. In Nordic Info and LDL, the courts expanded the role of the precautionary principle in free movement, potentially lowering the evidentiary threshold for Member States to justify restrictive measures. Importantly, this reasoning was not tied to emergency conditions, which opened the door for its application in other contexts.

The growing, though inconclusive, evidence linking social media usage and addictive algorithms to mental health issues raises the question of whether the evolving case law could justify regulatory measures to protect mental health in the digital space. By extending the application of the precautionary principle, the legal precedents set in these cases could pave the way for stronger regulations aimed at safeguarding online well-being, particularly regarding social media platforms and their addictive features.