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Ustyugov doping case: 'We will definitely appeal before the CAS'



The story of Russian star biathlete Evgeny Ustyugov  (pictured), who stands accused of doping but maintains his innocence, has not only made headlines in sporting circles in recent weeks, but has also spawned a legal saga that is unlikely to end anytime soon.

It all began with allegations of widespread doping following the 2014 Winter Olympics in Sochi. Ustyugov, winner of a gold medal at the Olympics, got caught in the dragnet and was subsequently stripped of his award and banned from the sport by the International Biathlon Union's (IBU) Anti-Doping Hearing Panel in February this year. The case is ongoing as Ustyugov challenged the sanction before the Court of Arbitration for Sport, which is expected to hear the appeal next year.

On the top of that, the IBU initiated other proceedings before the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) in Switzerland earlier this year. The bone of contention was a curious one: abnormally elevated haemoglobin levels, which for the IBU was evidence for doping.

However, Ustyugov’s defense had long argued that the athlete carries an exceptionally rare genetic mutation that leads to haemoglobin overproduction. Unconvinced, the CAS ADD ruled against Ustyugov on 27 October, thereby upholding the IBU’s point of view in the face of what the defence claims is overwhelming evidence to the contrary.

“The CAS ADD found that the abnormalities in the athlete biological passport (ABP), namely high haemoglobin (HGB) values, could not be explained by his particular genetic condition”, explained to EuReporter Yvan Henzer, a member of the defence team representing Ustyugov. “Said otherwise, the CAS ADD found that the abnormalities were caused by doping.”

But here is where things become complicated. Along with the defence’s submission of blood samples that showed the athlete to have high haemoglobin levels in 2017 and 2020 – three and six years, respectively, after Ustyugov’s retirement from the sport – CAS ADD listened to the testimony of three geneticists, two of which supported the defence’s position. According to Henzer, however, the court “did not follow the two Russian geneticists and preferred the opinion of the geneticist appointed by WADA who believes that genetic mutations of Mr Ustyugov cannot cause high haemoglobin values.”

While CAS ADD’s decision was swift, it leaves unanswered a number of uncomfortable questions. Their significance derives from the fact that they challenge not only the legal authority of CAS ADD to rule on the case, but also call into doubt the fairness of the trial itself. “When [Mr Ustyugov] was affiliated with the IBU, he accepted to be placed under the jurisdiction of the IBU Anti-Doping Hearing Panel”, says Henzer. But because the CAS anti-doping division is a new institution that was only established in 2019, the defence argues it has no jurisdiction over the case at hand.

“We filed a legal opinion of a prominent expert who clearly concluded that the CAS ADD could not have jurisdiction,” clarified Henzer, but the trial went ahead nonetheless. Not surprising then that in coming to its ruling, Henzer accuses the trial to have been a rather one-sided affair in which the judges turned a blind eye to a series of vindicating facts. For example, Ustyugov’s parents also have shown to have elevated haemoglobin levels thanks to the same genetic mutation, “which establishes that the genetic mutations effectively cause high haemoglobin values.”

This was not considered in court, just as blood samples from Ustyugov showing high haemoglobin levels – even after his retirement – were dismissed by the court on the grounds that they were taken without independent oversight. Yet this would imply that Ustyugov had taken performance enhancing drugs even beyond his professional career – and deep into his retirement.

With these inconsistencies left unexplained, another issue concerns the circumstances in which the IBU collected Ustyugov’s samples. Henzer insists they were collected “in clear violation of the WADA Guidelines”, meaning they cannot be considered “valid evidence” as adherence to temperature and transportation requirements created by WADA itself was not demonstrated. Even so, CAS ADD failed to consider this argument altogether, much to Henzer’s dismay, “as the violation of these Guidelines was a very strong argument that could not even be rebutted by the IBU’s counsel” – making it seem as if “the outcome was written in advance.”

Whether this really was the case remains unclear, yet Henzer makes it clear that the fight is far from over: “We will definitely appeal before the CAS and probably file an appeal before the Swiss Supreme Court on the issue of jurisdiction as well.” As things stand now, the Ustyugov case is set to go into the next round.


EU prepares for budget impasse and an inventive workaround on Next Generation EU 



A senior European Commission official outlined the measures the EU would need to take should the EU fail to reach an agreement on the multi-annual 2021 - 2027 budget (MFF) and recovery package next week. 

The deal on the budget and the New Generation EU package was agreed after several days of negotiations in the summer. However, Poland and Hungary are threatening to veto the deal because of the agreement the German Presidency has reached with the European Parliament on rule of law conditionality.  

Time is running out and in order for the budget to be operational on 1 January, there would need to be an agreement between the Parliament and Council by Monday (7 December) on the budget for the first year of the seven-year budget, this would also require the agreement of heads of government at next week’s European Council (10-11 December) to the full budget package. In this scenario, it would then be rubber-stamped in a further conciliation (11 December) and placed before the European Parliament’s plenary (14-17 December) to be signed off.

The budget, but not as we know it

If the heads of government fail to reach an agreement next week it will automatically trigger the“provisional twelfths” (Article 315 TFEU) approach, which was last used in 1988. It is a mechanism that guarantees some degree of continuity and will be based on the current MFF. As the legal basis for some programmes expires at the end of the year, those programmes will not receive any further payment commitments. This includes major funding programmes, such as Cohesion Policy, the European research programme (Horizon Europe) and many more. It does not include pillar 1 of the Common Agricultural Policy, humanitarian aid and the EU’s Common Foreign and Security Policy (CFSP). Rebates will also vanish as there won’t be a replacement decision on own resources in this scenario. 

The new annual budget would also have to take into account that the EU’s overall funds will be lower due to the failure to reach an agreement on own resources and lower GNI caused by the pandemic and Brexit. This could amount to as much as 25 to 30 billion euro.

Next Generation EU

Next Generation EU, which is discrete from and additional to the multi-annual budget, could be agreed upon by different means. The senior official ruled out the use of an inter-governmental conference and separate treaty as it would take too much time and would place the debt burden on individual states, rather than allowing the EU to hold the debt in its name. However, the Commission does think that a “Community-based solution” allowed under the current treaties would be possible. This could allow enhanced cooperation between a coalition of the willing, and would need a clear link to the EU’s treaties, for example, it could be allowed through the possibility in the treaty of channeling financial assistance to member states experiencing severe difficulties, caused by exceptional occurrences (Article 122), but the senior official eluded to other options.

The possibility of circumventing some of the damage caused by Poland, Hungary and possibly Slovenia’s veto could help to focus minds as an important week approaches.

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Digital economy

New EU rules: Digitalisation to improve access to justice



Cross-border videoconferencing and safer and easier document exchange: learn how new EU rules for digitalising justice will benefit people and firms. On 23 November, Parliament adopted two proposals aimed at modernizing justice systems in the EU, which will help to decrease delays, increase legal certainty and make access to justice cheaper and easier.

New regulations will implement several digital solutions for cross-border taking of evidence and service of documents with the aim of making cooperation between national courts in different EU countries more efficient.

Endorsing distance communication technologies will lower costs and help evidence to be taken quicker. For example, to hear a person in a cross-border proceeding, videoconferencing can be used instead of requiring a physical presence.

A decentralized IT system that brings together national systems will be established so that documents can be exchanged electronically in a faster and more secure way. The new rules include additional provisions to protect data and privacy when documents are transmitted and evidence is being taken.

The regulations help simplify procedures and offer legal certainty to people and businesses, which will encourage them to engage in international transactions, thereby not only strengthening democracy but also the EU's  internal market.

The two proposals update existing EU regulations on service of documents and taking of evidence to ensure they make the mosrt of modern digital solutions.

They are part of the EU's efforts to help digitise justice systems. While in some countries, digital solutions have already proved effective, cross-border judicial proceedings still take place mostly on paper. EU aims to improve cooperation at EU level to help people and businesses and preserve the ability of law enforcement to protect people effectively.

The COVID-19 crisis has created many problems for the judicial system: there have been delays of in-person hearings and of cross-border serving of judicial documents; inabilities to obtain in-person legal aid; and the expiry of deadlines due to delays. At the same time, the rising number of insolvency cases and layoffs due to the pandemic make the courts’ work even more critical.

The proposals enter into force 20 days following their publication in the EU's official journal.

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Coronavirus: Commission presents 'Staying safe from COVID-19 during winter' strategy



Today (2 December), the Commission adopted a strategy for a sustainably managing the pandemic over the coming winter months, a period that can bring a risk of increased transmission of the virus owing to specific circumstances such as indoor gatherings. The strategy recommends continued vigilance and caution throughout the winter period and into 2021 when the roll out of safe and effective vaccines will occur.

The Commission will then provide further guidance on a gradual and coordinated lifting of containment measures. A coordinated EU wide approach is key to provide clarity to people and avoid a resurgence of the virus linked to the end of year holidays. Any relaxation of measures should take into account the evolution of the epidemiological situation and sufficient capacity for testing, contact tracing and treating patients.

Promoting the European Way of Life Vice President Margaritis Schinas said: “In these extremely difficult times, guidance to Member States to promote a common approach to the winter season and in particular on how to manage the end of the year period, is of vital importance. We need to curtail future outbreaks of infection in the EU. It is only through such a sustained management of the pandemic, that we will avoid new lockdowns and severe restrictions and overcome together.”

Health and Food Safety Commissioner Stella Kyriakides said: “Every 17 seconds a person loses their life due to COVID-19 in Europe. The situation may be stabilizing, but it remains delicate. Like everything else this year, end of the year festivities will be different. We cannot jeopardise the efforts made by us all in the recent weeks and months. This year, saving lives must come before celebrations. But with vaccines on the horizon, there is also hope. All member states must now be ready to start vaccination campaigns and roll-out vaccines as quickly as possible once a safe and effective vaccine is available.”

Recommended control measures

The staying safe from COVID-19 during winter strategy recommends measures to keep the pandemic under control until vaccines are widely available.

It focuses on:

Physical distancing and limiting social contacts, key for the winter months including the holiday period. Measures should be targeted and based on the local epidemiological situation to limit their social and economic impact and increase their acceptance by people.

Testing and contact tracing, essential for detecting clusters and breaking transmission. Most member states now have national contact tracing apps. The European Federated Gateway Server (EFGS) enables cross-border tracing.

Safe travel, with a possible increase in travel over the end-of-year holidays requiring a coordinated approach. Transport infrastructure must be prepared and quarantine requirements, which may take place when the epidemiological situation in the region of origin is worse than the destination, clearly communicated.

Healthcare capacity and personnel: Business continuity plans for healthcare settings should be put in place to make sure COVID-19 outbreaks can be managed, and access to other treatments maintained. Joint procurement can address shortages of medical equipment. Pandemic fatigue and mental health are natural responses to the current situation. Member states should follow the World Health Organisation European Region's guidance on reinvigorating public support to address pandemic fatigue. Psychosocial support should be stepped up too.

National vaccination strategies.

The Commission stands ready to support member states where necessary in the deployment of vaccines as per their deployment and vaccination plans. A common EU approach to vaccination certificates is likely to reinforce the public health response in Member States and the trust of citizens in the vaccination effort.


Today's strategy builds on previous recommendations such as the April European road map on the careful phasing out of containment measures, the July Communication on short-term preparedness and the October Communication on additional COVID-19 response measures. The first wave of the pandemic in Europe was successfully contained through strict measures, but relaxing them too fast over the summer led to a resurgence in autumn.

As long as a safe and effective vaccine is not available and a large part of the population not immunised, EU member Sstates must continue their efforts to mitigate the pandemic by following a coordinated approach as called for by the European Council.

Further recommendations will be presented in early 2021, to design a comprehensive COVID-19 control framework based on the knowledge and experience so far and the latest available scientific guidelines.

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