Planet49 CJEU Judgment brings some ‘Cookie Consent’ Certainty to Planet Online Tracking

By Gabriela Zanfir-Fortuna

This blog was first published on pdpEcho and is reproduced here with the kind permission of the editor: https://pdpecho.com/2019/10/03/planet49-cjeu-judgment-brings-some-cookie-consent-certainty-to-planet-online-tracking/

Last week, the Court of Justice of the European Union published its long-awaited judgment in the Planet49 case, referred by a German Court in proceedings initiated by a non-governmental consumer protection organization representing the participants to an online lottery. It dealt with questions which should have been clarified long time ago, after Article 5(3) was introduced in Directive 2002/58 (the ‘ePrivacy Directive’) by an amendment from 2009, with Member States transposing and then applying its requirements anachronistically:

  • Is obtaining consent through a pre-ticked box valid when placing cookies on website users’ devices?
  • Must the notice given to the user when obtaining consent include the duration of the operation of the cookies being placed and whether or not third parties may have access to those cookies?
  • Does it matter for the application of the ePrivacy rules whether the data accessed through the cookies being placed is personal or non-personal?

The Court answered all of the above, while at the same time signaling to Member States that a disparate approach in transposing and implementing the ePrivacy Directive is not consistent with EU law, and setting clear guidance on what ‘specific’, ‘unambiguous’ and ‘informed’ consent means. Continue reading

Case C-93/18 Bajratari – Unlawful Employment and the Right to Free Movement

By Maria Haag

On 2 October 2019, the CJEU delivered an important decision, which clarifies the ‘sufficient resources’ condition of Article 7(1)(b) Directive 2004/38 and simultaneously reinforces the right to free movement of Union citizens.

The case concerned the right of a third-country national mother of two minor Union citizens to reside in Northern Ireland in her capacity as their primary carer. The UK authorities had found that the mother could not claim a derived right of residence as the children did not fulfil the requirements set out in Article 7(1)(b) of Directive 2004/38. This provision sets out two conditions for the Union citizen’s right of residence in a host Member State for a period longer than three months: having (i) sufficient resources for themselves and their family members not to become a burden on the host state’s social assistance system, and (ii) comprehensive sickness insurance cover.

Specifically, in this case, the UK authorities argued that the minors could not prove compliance with the requirement for sufficient resources. While their father did place resources at their disposal, the UK authorities argued that such resources could not be taken into account for the purposes of Article 7(1)(b), as they had derived from employment carried out unlawfully after the expiry of his residence card and work permit. Continue reading

Fashion-ID: Introducing a phase-oriented approach to data protection?

By René Mahieu and Joris van Hoboken

Introduction

Fashion ID revolves around a German consumer protection organization, Verbraucherzentrale NRW (a public service organization), which filed a lawsuit against Fashion ID, an online fashion shop, about the placement of a Facebook “Like” button on the shop’s website. The inclusion of the like-button on Fashion ID’s website results in the transmission of personal data to Facebook’s servers when a visitor enters the website. This happens (i.) without the visitor being aware of that, (ii.) regardless of whether the visitor is a member of Facebook, and (iii.) regardless of whether the visitor actually clicks the like-button. According to the Verbraucherzentrale, the website operator has not provided information, nor collected consent for this processing of personal data, in accordance with its obligation under the Data Protection Directive (DPD). Continue reading

Tracing Root of Movement Rights: EU and Mercosur

By Kim Rust

The attribution of regional free movement rights is not a European phenomenon. Academia and political discourse, however, often frame EU policy as the masterpiece among a sparse variety of approaches which grant free movement rights to regional nationals. The oscillations of Brexit and wave of refugees into Europe over recent years have brought to the surface tensions and uncertainty surrounding movement rights in the EU, which Ursula von der Leyen and a newly composed Commission will be called upon to respond to in the near future. This blog post is a reorientation in our approach to free movement, stepping away from the euro-centric approach which often characterises academic and political discussion. The following contribution offers a comparison between free movement in the EU and Mercosur. South America is ill-explored in migration literature, though it represents a rich ground for comparison. This blog builds upon the work of Dr Diego Acosta in his recent publication The National versus the Foreigner in South America, and strives to map a series of “membership configurations” in the EU and Mercosur. These configurations help to identify the bases of movement rights for regional nationals, test the strength and accessibility of these rights and draw conclusions as to whether movement rights can be more concretely guaranteed, and liberally, indiscriminately attributed. Continue reading

Neues aus dem Elfenbeinturm: September 2019

Conference “Recognition of status filiationis established abroad: European perspectives and national resistance”

University of Udine, 24 October 2019. Deadline for abstract submissions: 15 September 2019.

2020 ESIL Research Forum “Solidarity: The Quest for Founding Utopias of International Law”

University of Catania, 23-24 April 2020. Deadline for abstract submissions: 30 September 2019.

First Jean Monnet NOVA-EU workshop “Digitalisation, Ethics and EU Fundamental Rights”

Maastricht University, 9-10 January 2020. Deadline for abstract submissions: 31 October 2019.

Call for Papers “European State Aid Law Quarterly”

Manuscripts accepted on a rolling basis.

Advocate General Bobek on One of us – Legal Clarity vs Political Debate

By Jasmin Hiry

On 29 July 2019, Advocate General Bobek confirmed the General Court’s ruling in One of Us. His opinion in Case C-418/18P Puppinick and Others v European Commission has been much awaited, as it deals with a so far largely unaddressed aspect of the European Citizens’ Initiative (ECI) – the potential outcome of a successful initiative.

Background

The ECI was introduced with the Lisbon Treaty and constitutes the first supranational tool of participatory democracy. It allows one million citizens, from at least one quarter of the Member States to invite the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties (Article 11(4) TEU & Article 7 Regulation 211/2011). Regulation (EU) No 211/2011, which will soon be replaced by Regulation (EU) 2019/788, lays down the concrete procedure and conditions required for an ECI. The procedure consists of three steps – (1) registration, (2) collection of support and ultimately, (3) submission of a successful initiative, which is one that meets the threshold of one million supporters, to the Commission for examination. So far, the case law has largely dealt with the first stage of this procedure (see e.g. C-589/15 P Anagnostakis or C-420/16P Izsák and Dabis). Puppinick, however, is the very first case before the Court of Justice dealing with the outcome of an ECI. Continue reading

Commission v Germany (c-377/17): Do exceptions in tariff regulation matter?

The European Law Blog will be taking a summer recess. We’ll be back end of August with new commentaries, including on key Summer developments. Please do send us on your contributions throughout this period and we will get back to you in due course. Happy Holidays to all our readers!

By Valentin Vandendaele

Lawyers, engineers, architects, and other liberal professions, i.e. ‘occupations requiring special training in the liberal arts or sciences’, tend to be subject to heavy regulation. Such regulation may preserve a high service quality or shield consumers against malpractice (see the European Commission’s Report on Competition in Professional Services (COM(2004) 83 final, paras 1 and 28). In a similar vein, Member States have adopted legislation setting minimum and maximum prices in an attempt to ensure service quality by preventing excessive competition on price or to protect consumers from excessive prices.

One example of such legislation is the German Honorarordnung für Architekten und Ingenieure, which was the matter of contention in the Commission v Germany case (C-377/17). This decree fixed minimum and maximum tariffs architects and engineers could charge for their planning services. In its judgment, the Court of Justice of the European Union (Court) ruled that these tariffs constituted requirements falling within the scope of Article 15(2)(g) of the Services Directive (2006/123/EC). This was true even though the German measure provided for multiple exceptions allowing the legal minimum and maximum tariffs to be disregarded. Advocate General (AG) Szpunar had more openly suggested that these exceptions were inconsequential under Article 15(2)(g). Finally, the Court held that the German tariff regulation did not satisfy the conditions in Article 15(3) to be compatible with the directive. Continue reading

Neues aus dem Elfenbeinturm: July 2019

Conference “EU Agencies as ‘Inbetweeners’? The Relationship between EU Agencies and Member States”

Maastricht University, 4-5 December 2019. Deadline for abstract submissions: 31 July 2019.

3rd Young European Law Scholars Conference “Shaping the Future of Europe”

University of Salzburg, 27-28 February 2020. Deadline for abstract submissions: 1 September 2019.

Conference “Application Of The Succession Regulation In The EU Member States”

University of Silesia, Katowice, 12 September 2019. Deadline for registration: 2 September 2019.

Yearbook of European Law Annual EU Law and Policy Conference “EU Law in the era of the Fourth Industrial Revolution”

University College London, January 2020. Deadline for draft paper/extended abstract submissions: 8 September 2019.

Wolves and the Habitats Directive, a misread opinion in C-674/17?

By Anna Heslop

On 8 May the CJEU issued an Advocate General’s Opinion in case C-674/17 Luonnonsuojeluyhdistys Tapiola, on the hunting of Wolves in Finland.  With the final decision of the court due in the coming weeks it is useful to analyse whether the nuance of that opinion is being lost in the public reaction by interested groups, who have taken it as a green light for hunting protected species.

The Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora) requires member states to establish a system of strict protection for animal and plant species listed in Annex IV of that Directive, including Canis Lupus – Wolves[1].  Article 16(1) allows member states to derogate from that strict protection in limited circumstances and provided certain stringent tests are met.  There must be no satisfactory alternative, the derogation must not be detrimental to the maintenance of the population at favourable conservation status in their natural range and derogations may only be applied for specific reasons, in summary:

  1. in the interests of protecting wild flora and fauna and conserving natural habitats;
  2. to prevent serious damage to crops, livestock, forests, fisheries and water;
  3. in the interests of public health and public safety, or for other imperative reasons of overriding public interest;
  4. for the purposes of research or education, for example for repopulation or reintroduction;
  5. to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens in limited numbers specified by the competent national authorities.

These derogations have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly (see e.g. C-6/04, para. 111 and C-508/04, para. 110).

Case C-674/17 concerns a preliminary reference from the Supreme Administrative Court of Finland for guidance on the interpretation of Article 16(1)(e) of the Habitats Directive in relation to derogations for the hunting of wolves.  A final decision in the case is awaited in the coming weeks. Continue reading

Vers une intelligence artificielle « fabriquée en Europe » : pistes d’action et lignes directrices éthiques

By Alyson Berrendorf

L’intelligence artificielle (IA) est une nouvelle donnée qu’il n’est – depuis plusieurs années – plus possible de négliger. La croissance de la puissance de calcul, la maximisation ainsi que la disponibilité des données, la rapidité de traitements des informations et les progrès réalisés dans les algorithmes ont fait de l’IA l’une des technologies les plus stratégiques du 21ème siècle. Face à ce constat, l’Union européenne se doit ne pas rater cette révolution technologique, et, mieux encore, elle se doit de devenir un acteur de pointe sur la scène internationale afin de développer une IA performante, éthique et sûre, au profit tant du citoyen (dans sa vie privée et professionnelle) que de la société dans son ensemble.

A cet effet, la Commission européenne a pris plusieurs initiatives ces deux dernières années. La communication de la Commission européenne intitulée « L’intelligence artificielle pour l’Europe », publiée en avril 2018, préconisait de ce fait une stratégie européenne à l’appui de cet objectif, ainsi qu’un plan coordonné pour le développement de l’IA en Europe, présenté en décembre dernier. Plus récemment encore, en avril 2019 cette fois, la Commission a encore franchi une étape supplémentaire en souhaitant lancer sa phase pilote afin de faire en sorte que les lignes directrices en matière éthique pour le développement de l’IA sûre puissent être concrètement mises en œuvre dans la pratique (COM(2019) 168 final).

Au travers de ce bref article, nous ferons une première évaluation des diverses avancées concernant le déploiement de l’intelligence artificielle au sein de l’Union européenne. Nous analyserons notamment le fil conducteur de ce plan, ainsi que la liste d’évaluation et les lignes directrices en matière d’éthique récemment mises en avant par le groupe d’experts indépendants de haut niveau sur l’intelligence artificielle, afin de générer, selon leurs termes, « une IA digne de confiance » et « axée sur l’humain ». Face à cette dénomination, une question mérite d’être soulevée… Une IA axée sur autre chose – ou pour le dire autrement, une IA au service d’autre chose que l’humain – est-elle possible ? Continue reading

Refining transparency and responsible investment?: The case of EIB and sustainable finance

By Chrysa Alexandraki

Background

On 8 January 2019, an action was brought before the Court of Justice of the European Union (hereafter CJEU) by an environmental law charity, ClientEarth (hereafter applicant) against a multilateral development bank (hereafter MDB) and European institution, the European Investment Bank (hereafter EIB). The case concerns the financing by the bank of a biomass energy generating project in Northern Spain – Galicia -, of the cost of 60 million euros, followed by the bank’s refusal to refine its decision to finance the aforementioned investment, regardless the applicant’s request for an internal review of this decision on April 2018. The applicant bases the request for an internal review on alleged ‘errors in the assessment of the financing combined with the provision of minimal information regarding the funding decision’. The main claim brought by the applicant involves the annulment of EIB’s refusal to conduct an internal review and subject its decision to scrutiny, as requested under Article 10 of the Aarhus Regulation (hereafter Regulation), bringing into discussion implementation issues of both International and European law. Continue reading

The US, China, and Case 311/18 on Standard Contractual Clauses

By Peter Swire

On July 9, the Court of Justice for the European Union (CJEU) held eight hours of oral argument in hearing case C-311/18, on whether US surveillance practices violate the fundamental rights of EU citizens.  This case could potentially rupture the mechanisms that allow personal data to flow across the Atlantic. Should the Court so decide, it would soon be illegal for companies and services we use every day to transfer personal data from the EU to the US.  Such a determination, however, may result in an absurdity; EU citizens’ data could not travel to the US for fear of intrusive surveillance, but could flow unimpeded to China, a nation with surveillance practices ripped from the pages of a dystopian science fiction novel. Continue reading

The cross border operations Directive: wider scope but more restrictions

By Segismundo Alvarez

In an increasingly changing and global business environment, companies need to be able to reorganise, also internationally, through cross border, mergers, divisions and conversions. At the same time, these operations pose a risk to stakeholders’ rights, and international reorganisations are increasingly seen by the public, NGOs and EU institutions as a means to avoid social and tax legislation, especially for transnational companies. This tension has been obvious in the preparation of the Directive on cross-border mobility (hereinafter: the new Directive)approved by the European Parliament on April 18th –see the final text here , subject only to the corrigendum procedure– that amends Directive 2017/1132 relating to certain aspects of Company Law (hereinafter: the 2017 Directive).

The key novelty is that the scope of regulated cross border transactions is broadened, as the new Directive adds cross-border divisions and conversions to the already harmonised regulation of cross-border mergers. The EU Court of Justice (hereinafter: ECJ) had declared that companies should be allowed to carry out cross-border transactions as a consequence of their right to freedom of establishment (cases SEVIC, Cartesio, VALE Építési and POLBUD) but the lack of regulation implied practical difficulties. Continue reading

Thickening up judicial independence: the ECJ ruling in Commission v. Poland (C-619/18)

By Marco Antonio Simonelli

On the 24 June, the European Court of Justice (‘the ECJ’ or ‘the Court’) delivered the long-awaited judgment in Commission v Poland (C-619/18). This judgment represents the most significant offspring of Associação Sindical dos Juízes Portugueses (‘ASJP’); the ECJ in fact, for the first time declared the incompatibility of a national provision on the ground that it violated Article 19 TEU. Whoever has followed the proceedings since the beginning could not be surprised by this outcome – as the interim measure of the 19 October 2018 largely anticipated it – yet the judgment is much more than a simple application of the principles set out in ASJP. The judgment indeed makes clear that the legitimacy of any restriction of the principle of judicial independence is subject to a proportionality scrutiny, but at the same time it seems to consider judicial independence as a quasi-absolute value. Also, the ECJ took the chance the define the contours of Article 19 TEU scope of applicability; thus consolidating its Article 19 TEU case law. Continue reading

The first preliminary ruling on Directive 2014/104/EU: Case 637/17 Cogeco

By Guilherme Oliveira e Costa

Introduction

With two major decisions, March 2019 was an interesting month with regard to the Court of Justice’s (also ‘ECJ’) case-law on private enforcement of competition law: Skanska (C-724/17) and Cogeco (C-637/17). This post will comment on the judgment in Cogeco, whereas a previous post analysed the Skanska ruling.

Cogeco is, in fact, an unsurprising judgment, particularly regarding its conclusions. But the decision itself contains a lot of interesting points, and was preceded by a noteworthy Opinion of AG Kokott. Additionally, its importance must not be underestimated since it is the first preliminary ruling on Directive 2014/104/EU (‘Damages Directive’) and, as pointed out by AG Kokott, there are still several questions connected with this Directive which need clarification. Moreover, this ruling also shows a very clear example on how unsuitably some national legal systems (the Portuguese one in the case at hand) treated private enforcement before the harmonisation implemented by the Damages Directive. Continue reading

AG Opinion on C-18/18: Towards private regulation of speech worldwide

By Paolo Cavaliere

The case of Glawischnig-Piesczek v Facebook offers the opportunity for the Court of Justice to clarify the personal and material scope of monitoring obligations that may be imposed on Internet intermediaries, i.e. those private entities that ‘give access to, host, transmit and index content originated by third parties’.  The decision of the Court will determine whether domestic courts can impose monitoring obligations on digital platforms, and of what nature, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries. The opinion of the Advocate General, rendered earlier this month, raises some concerns for on-line freedom of expression because of its expansive approach to both monitoring obligations and jurisdictional limitations. Continue reading

The Court’s judgement in C-591/17 (Austria v Germany), or why the German light-vehicle vignette system is discriminatory

By Niels Kirst 

The recent judgement of the European Court of Justice in C-591/17 Austria v Germany was a Member State dispute about the enactment of a motorway charge in Germany. The Court of Justice of the European Union (hereinafter: CJEU) addressed one of the core concepts of the European legal order – the non-discrimination principle enshrined in Article 18 of the Treaty on the functioning of the European Union (hereinafter: TFEU). Questions had to be answered: (1) Can the cumulative introduction of a vignette system and a vehicle-tax relief amount to an indirect discrimination? (2) Should political considerations be taken into account by the Court? (3) Is Article 259 TFEU a suitable tool to solve Member State disputes?

The case is particularly interesting due to the use of Article 259 TFEU, which Austria invoked to bring Germany before the CJEU. Article 259 TFEU is rarely used due to its blaming character of the alleged rule-breaker. Many Member States would prefer that the European Commission (hereinafter: EC), as guardian of the treaties, leads the investigations into an alleged breach of EU law by a Member States. However, Article 259 TFEU can be seen as a last resort measure by a Member State, if the Member State sees its interests or the interest of its citizens jeopardized.[1]

In the case at hand, Austria brought the measure before the CJEU since many Austrians use the German highways due to proximity and transnational road travels through Germany. Austria based its claim on two characteristics. First, (i) the new motorway charge would be payable by all users of the motorway network in Germany and second (AG opinion, para. 5); (ii) owners of vehicles registered in Germany are granted a tax relief equal to the amount of the motorway charge (AG opinion, para. 5). Austria argued that the combination of these two measure factually amounts to an indirect discrimination of EU citizens when they use German highways.

This commentary presents the relevant political backgrounds leading up to this case, discusses the Court’s judgement and reflects upon the wider implications of Case C-591/17 for the development of an EU-wide vignette system for light vehicles, the use of Article 259 TFEU and the questions of political accords between the EC and a Member State. Continue reading

The Road that divided the EU: Italy joins China’s Belt and Road Initiative

By Femke van der Eijk and Angela Pandita Gunavardana

China’s global influence has grown dramatically in recent years. Its Belt and Road Initiative (BRI) is an important manifestation of this rise. On 23 March 2019 Italy, the first G7 country, formally joined the BRI, which has caused significant tensions within the EU. This was the wake-up call for the EU, which prompted it to reconsider its policies towards the Asian superpower.

To BRI, or not to BRI?

The BRI is a transcontinental endeavour, launched in 2013, which is centred around infrastructure investment and aims at promoting projects that foster regional cooperation, development, and connectivity. Continue reading

Neues aus dem Elfenbeinturm: June 2019

Conference “The protection of economic, social and cultural rights in the age of exits”

The Hague, 21-22 November 2019. Deadline for abstract submissions: 30 June 2019.

Workshop “Judicial and extra-judicial challenges in the EU multi- and cross-level administrative framework”

Maastricht University Brussels Campus, 8-9 July 2019. Registration necessary.

Workshop “EU Trade Agreements and the Duty to Respect Human Rights Abroad”

Asser Institute, The Hague, 11 December 2019. Deadline for abstract submissions: 15 July 2019.

Conference “Constitutional interpretation in European populist regimes ‒ new methods or old tools for new purposes?”

Budapest, 5-6 December 2019. Deadline for abstract submissions: 31 July 2019.

AG Opinion on Case C-411/17: EIA for existing installations and the CJEU’s struggle with international law

By Sebastian Bechtel

Currently pending before the CJEU is a fundamental issue regarding the assessment of environmental effects of major projects: Should their impacts only be reassessed when construction takes place? Or should there also be an environmental impact assessment (‘EIA’) if an aging project is allowed to continue operation many years beyond its originally projected lifetime, without any physical alterations?

Case C-411/17 requires the Court to address its own interpretation of the EIA Directive in an earlier judgement which arguably contradicts the EU’s obligations under international law. In her Opinion published in November last year, AG Kokott has therefore urged the Court to reverse its case law.

EIA is an essential procedure to prevent environmental impacts at source and to allow for public participation in decision-making. Since many major industrial facilities, such as energy infrastructure, operate over many years, the question as to when an EIA obligation arises for existing facilities is of crucial importance. Next to posing intricate legal questions concerning the EU legal order, the case is therefore of great practical relevance to environmental protection in Europe.

This commentary presents the relevant international and EU law developments leading up to this case, discusses AG Kokott’s Opinion and reflects upon the wider implications of Case C-411/17 for the development of EU environmental law and its interaction with the international legal order. Continue reading