The future of national data retention obligations – How to apply Digital Rights Ireland at national level?

Note by the editors: we will take a short break over the summer and resume blogging in the week of 16 August

By Vanessa Franssen

On 19 July, Advocate General (AG) Saugmandsgaard Øe delivered his much awaited opinion on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, which were triggered by the Court of Justice’s (CJEU) ruling in Digital Rights Ireland, discussed previously on this blog. As a result of this judgment, invalidating the Data Retention Directive, many Member States which had put in place data retention obligations on the basis of the Directive, were confronted with the question whether these data retention obligations were compatible with the right to privacy and the right to protection of personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights (Charter). Hence, without a whisper of a doubt, several national legislators eagerly await the outcome of these joined cases, in the hope to get more guidance as to how to apply Digital Rights Ireland concretely to their national legislation. The large number of Member States intervening in the joined cases clearly shows this: in addition to Sweden and the UK, no less than 13 Member States submitted written observations. The AG’s opinion is a first – important – step and thus merits a closer look. Continue reading

Neues aus dem Elfenbeinturm: July 2016

Conference “The Concept of International Constitutional Law”

Vienna University of Economics and Business, 23 September 2016. Deadline for (free) registration : 16 September 2016.

Conference “Movement of People – A Comparative Conference on Migration

University of Hamburg, 23-24 September 2016. (Free) registration necessary.

Conference “An Administrative Procedure Act for the EU?”

University of Lund, 24 November 2016. Deadline for (free) registration : 10 November 2016.

Advocate General wants libraries to lend e-books (Opinion of AG Szpunar in C- 174/15, Vereniging Openbare Bibliotheken)

By Bernd Justin Jütte

On 16 June 2016 Advocate Geneal (AG) Szpunar, who recently is very active in the field of European copyright (see also on this blog here), published his Opinion in Vereniging Openbare Bibliotheken v Stichting Leenrecht. The case deals with the question whether public libraries are entitled to lend electronic versions of books (e-books) and, if so, under which conditions. The AG takes a favourable position regarding the lending of e-books under the Rental and Lending Rights Directive (Directive 2006/115/EC). Yet, what is more interesting than the actual outcome of his opinion is his very daring argumentation to treat e-books and printed books alike for the purpose of the said Directive. The opinion, if followed by the Court of Justice (CJEU), could also have an influence on the interpretation of the Information Society Directive (Directive 2001/29/EC) and more far-reaching questions of digital exhaustion.

It is quite noteworthy that AG Szpunar highlights in a rather long introduction the important role of libraries and their difficulties to adapt to the changing circumstances of book consumption. He identifies the case as one which would enable the Court “to help libraries not only to survive, but also to flourish.” (para. 1) This, so the AG, would be possible by answering the question whether libraries are allowed to lend e-books. Continue reading

Union Citizenship – Still Europeans’ Destiny after Brexit?

By Gareth Davies

If the UK withdraws from the EU, then its citizens will cease to be citizens of the Union. That much is simple – Article 20 TFEU doesn’t leave any doubt that Union citizens are those who are citizens of the Member States.

Still, while that provision was once thought to make Union citizenship dependent on national citizenship, in Rottmann the Court turned it neatly around, showing how it made national citizenship equally dependent on EU law. In that case a German citizen was faced with threatened denaturalisation, which would be likely to leave him stateless. He argued that the denaturalisation, because it also deprived him of his Union citizenship, was an interference with his EU law rights, and so should be constrained by EU law.

He won on the principle, although he probably lost on the facts: the Court said that indeed, a national measure which deprives a Union citizen of their Union citizenship clearly falls within the scope of EU law, and is therefore subject to judicial review in the light of EU law rules and principles. However, it went on to say that such a measure is not per se prohibited. It must merely be proportionate. Denaturalising fraudsters probably is, in most circumstances. Continue reading

After Brexit: The road ahead. A vote to leave but a decision to remain?

By Oliver Garner

On 23 June 2016, the population of the United Kingdom voted “leave” on the referendum question of whether the United Kingdom should leave or remain within the European Union.  The consequences of this vote could be that the government of the Member State triggers Article 50 of the Treaty on European Union; this will start the process of the United Kingdom becoming the first Member State to withdraw from the European Union. This seismic event poses a new challenge to our understanding of European integration as a progressive process of ever closer union.  Instead, fragmentation in the scope of integration could now occur through the rights created by European Union law no longer being enforceable in the territory of the United Kingdom, and no longer being applicable to United Kingdom citizens within the territory of the European Union.

Much has already been written in the months preceding the referendum regarding the process of the withdrawal negotiations following the triggering of Article 50. In contrast, this particular post will focus on whether the conditions for withdrawal have in fact been fulfilled, and therefore whether the United Kingdom is indeed bound to withdraw from the European Union. The result has triggered outrage from the 48% of the population who voted to remain, with calls for a second referendum, suggestions that the House of Commons could ignore the result, and a promise by the leader of the Liberal Democrats that the party would run on a platform to remain within the Union in any future general election.  Despite the exercise in direct democracy, the answer of whether the United Kingdom must now withdraw is not clear from the country’s constitution because there is no precedent for the withdrawal from a multilateral treaty regime which creates directly effective legal rights for citizens. Continue reading

After the referendum and before Brexit… Where now for workers’ rights in the EU?

By Rebecca Zahn

The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.

In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading

A post-Brexit analysis

By the editors

The British people voted by a majority of just over million people to leave the EU. Some have hailed this unprecedented decision as a return to sovereignty and a reassertion of British prominence on the global stage. Others mourn the outcome, believing it to represent a lurch towards splendid isolation and irrelevance. The vote laid bare a number of hard truths for both sides. While the close margin was largely anticipated, a negative and divisive campaign has meant that there is little common ground on which both the Remain and Leave camps can build. The results also exposed the extent of the inter-generational divide within the UK. Young voters chose by a large majority to remain while older voters chose to leave. This has led to the obvious recrimination that having reaped the benefits of EU membership for decades, older voters are depriving younger generations of these opportunities and deepening existing inequalities. The EU may, however, take some hope from this vote of confidence from the British youth.

 Beyond the political, economic and social implications of the result within the UK and for the EU, the vote will have significant legal consequences. In the coming months, we will attempt to identify the legal questions that Brexit will entail. A few spring to mind: Is the UK bound to invoke the Article 50 procedure? (The political establishment in the UK appear to think not.) What happens to the international (trade) agreements concluded jointly by the EU and the UK?  How will the border between Northern Ireland – which voted to Remain but will become an external border of the EU – and the Republic of Ireland be policed and what impact will this have on the Good Friday Peace Agreement? What – if any – immediate implications will this have for British MEPs, the CJEU, Commission officials, for the Council and – of course – for the British Presidency of the Council in 2017? Will Assange no longer have to fear for extradition to Sweden? What will happen to the more than one million UK citizens living and working in Europe? And what will happen to EU citizens living and working in the UK (including, for instance, professional football players)?  How will the UK’s environmental law and policy be affected, as, for instance, REACH will no longer be applicable in the UK? How will the Brexit vote affect the development of the digital single market or the future funding of scientific research?

 A particularly worrying feature of the UK referendum campaign, visible in the US Presidential Elections and elsewhere – is the vilification of ‘experts’ and the willing disregard of evidence. Nevertheless, as lawyers we must continue to rely on such evidence and expertise to negotiate the legal issues this vote will raise. All contributions to this blog on these legal implications are very welcome – informed expert opinion matters. 

Neues aus dem Elfenbeinturm: June 2016

Call for papers “The reform of the rules of procedure of the EU Courts”

University of Milan, 16 December 2016. Deadline for abstract submission: 10 August 2016.

Call for papers: “Human rights in the EU’s conditionality policy towards enlargement countries in the Western Balkans”

Deadline for abstract submissions: 15 July 2016.

Call for papers “Young Researchers Master Class on Agencification of EU executive governance”

European University Institute, Florence, 9 November 2016. Deadline for abstract submissions : 30 June 2016.

Call for papers: “Conference on Constitutionality, powers and legitimacy of EU agencies or agency-like bodies”

European University Institute, Florence, 10-11 November 2016. Deadline for abstract submissions : 30 June 2016. Continue reading

The Spanish Tax Lease case: identifying the beneficiary under the selectivity test in fiscal aid schemes

By Sébastien Thomas

In its judgment of 17 December 2015, Spain a.o./Commission, the General Court once again annulled a Commission decision dealing with a fiscal State aid scheme on the grounds that the Commission did not sufficiently establish that the scheme in question conferred a selective advantage to its beneficiaries.

Strikingly, the General Court’s judgment was very much inspired by two of its previous judgments – albeit in another composition – in the cases Autogrill España  and Banco Santander . In those cases, the General Court found that for the condition of selectivity to be satisfied, a category of undertakings which are exclusively favoured by the measure at issue must be identified in all cases and found that “the mere finding that a derogation from the common or ‘normal’ tax regime has been provided for cannot give rise to selectivity” [1]. This is especially the case when the measure at issue does not exclude, a priori, any category of undertakings from taking advantage of it. [2]

Without entering into the merits of these two judgments, against which the Commission has brought separate appeals, the General Court’s judgment in the Spanish Tax Lease (STL) case deserves special attention, for it contains also interesting developments on the links between the separate notions of advantage and selectivity, and the need for the Commission and for the EU courts to pay special attention to the identification of the correct beneficiary when dealing with State aid schemes involving multiple layers of actors. Continue reading

Harmonised European Standards and the EU Court of Justice: Beware Not to Open Pandora’s Box

By Bardo Schettini Gherardini

As already stressed by Megi Medzmariashvili in her post of 1st March 2016, the question of whether the Court of Justice of the European Union (‘the Court’ or ‘CJEU’) has jurisdiction to give a preliminary ruling on the interpretation of a harmonised technical standard (‘HTS’) adopted by the European Committee for Standardisation (‘CEN’) is, for the first time, raised in Case C-613/14, James Elliot Construction Ltd v Irish Asphalt Limited.

As Director – Legal Affairs of both CEN and CENELEC (the European Committee for Electrotechnical Standardization), I would like to give an insider’s view on the European standardization system and to expose a more critical approach to the Opinion delivered by the Advocate General (‘AG’) Campos Sanchez-Bordona on 28 January 2016.  The AG suggested, in reference to the first question referred for a preliminary ruling, that the Court must declare that it has jurisdiction for the main reason that the HTSs should be regarded as acts of the institutions, bodies, offices or agencies of the Union for the purposes of Article 267 of the Treaty on the functioning of the Union (‘TFEU’), which is the primary law basis of the cooperation between the CJEU and the national courts via the preliminary ruling system. The opinion of the AG is based on three arguments that I would like to comment on, just after insisting on some essential elements of background on the way HTSs are produced and how CEN and the other European standardisation bodies are working.   Continue reading

ECJ launches its own app CVRIA

cvria appBy Laurens Ankersmit

Earlier this month the Court launched its very own app for smartphone and tablet. Available for free in both the Apple App store (for iPhone and iPad) and Google Play (for Android), the app contains a few nice basic functions for us Court followers.

The application is available in 23 EU languages and has four basic features:

  • ‘Case-law’: this feature gives easy access to the latest decisions of the Courts of the CJEU (judgments, orders and Opinions);
  • ‘Press releases’: shows the 10 most recent press releases published by the institution;
  • Judicial calendar’: gives an overview of the hearings, readings of Opinions and deliveries of judgments scheduled for the next five weeks;
  • ‘Search’: gives easy access to all the case-law of the Court. This section allows searches to be made by case number, parties’ names and date and in full text mode.

I have had the app for a week or so now and it is quite a handy basic version of the curia website. The design is also quite neat and it operates smoothly. However, don’t expect too many wonders from the app. The search function is basic, so if you want to search by procedure or subject-matter, you will still need to go to the curia website. Also, while it is great that with one touch you have access to the most recent judgments, the list of judgments does not include the subject-matter of the case. This is of course a general problem with the Court’s website (although half of the list of judgments does indicate the subject-matter) and it makes it a bit more tedious to skim through recent judgments that might potentially be of interest to you. Lastly, it would really be great if the next version of the app would have a notification feature which it unfortunately doesn’t have currently.

You can find the app under the name ‘CVRIA’ (with a V not a U) in your app store or in Google Play.

Neues aus dem Elfenbeinturm: May 2016

The Presumption of Innocence (and the Right to be Present at Trial) Directive

By Stijn Lamberigts

The recently adopted Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (the Presumption of Innocence Directive) is the fourth Directive on the procedural rights of suspected and accused persons in criminal proceedings. After the Translation and Interpretation Directive, the Right to Information Directive and the Access to a Lawyer Directive, this new Directive tries to enhance the right to a fair trial through the adoption of common minimum rules on certain points of the presumption of innocence and the right to be present at trial (Recital 9). This should result in an increased trust between the Member States (MS) in the field of criminal justice and thereby facilitate mutual recognition. Whether this will be achieved by the Directive, will depend on the MS’s implementation efforts and the Court of Justice’s guidance on its interpretation.   Continue reading

Dirty links, porn previews without permission (Opinion of AG Wathelet in C-160/15, GS Media v Sanoma)

By Justin Jütte

Hyperlinking is one of the most important mechanisms that make the Internet workable and helps users to find and access information more easily. However, hyperlinking has come under scrutiny in the light of the provisions of the EU copyright rules. In the present case, the CJEU is being asked under which circumstances links to infringing material constitute a communication to the public. The request for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is part of a growing body of case-law on the interpretation of Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC). This post discusses the AG’s interpretation of the right of communication to the public in relation material which is made available on the Internet without the consent of the rightholder. Continue reading

Luxemburgerli: Astérix et la Politique Agricole Commune

Une belle introduction d’une opinion de l’Avocat Général Maciej Szpunar qu’il serait dommage de rater:

“Nous sommes en 2016 après Jésus-Christ. Toute la politique agricole commune (PAC) est régie par la procédure législative ordinaire… Toute ? Non ! Car une disposition irréductible du traité FUE relative à la PAC résiste encore à cette procédure ordinaire. Et la vie n’est pas facile pour ceux qui sont appelés à délimiter le champ d’application de cette disposition…”

Pernicious Effect of Similar Medicinal Product’s Orphan Exclusivity: CJEU Dismisses Teva’s Appeal (C-138/15 P)

By Mayank Dixit

In a significant, yet unusual judgment the Court of Justice of the European Union (CJEU) upheld the General Court’s decision (T-140/12; Teva Pharma v. EMA) that had affirmed the European Medicines Agency’s (EMA) rejection of Teva’s generic drug application for Glivec® (active substance-imatinib), not due to the reference product’s own orphan drug exclusivity but in view of orphan drug exclusivity of a similar medicinal product – Tasigna® (active substance-nilotinib).

The judgment is bizarre not only because it interprets the underlying orphan drug regulation in a manner incongruous with the spirit and substance of the legislation, but also for its potential to provide an unfair leg-up to the brand drug companies for extending their market monopolies indefinitely. It simply fails to fathom the underlying welfare rationale of the Regulation, which is meant to ensure the same quality of treatment for patients of rare conditions as those suffering from other diseases. The Court’s decision provides a skewed playing field where the interest of patients and generic pharmaceutical companies will be impacted by the unjustified extension of monopoly periods of brand drug products thus ensuring exploitative pricing of life-saving drugs. Continue reading

Limited liability for free Wi-Fi access (Case C-484/14, Mc Fadden v Sony Music)

By Justin Jütte

The civil liability of intermediary service providers remains a hotly debated topic in EU law, especially in relation to infringement of intellectual property rights (IPRs). Whereas the Information Society Directive (Directive 2001/29/EC), as well the IP Enforcement Directive (2004/48/EC) provide that owners of IPRs can, in principle, request injunctions against intermediaries, the E-Commerce Directive (Directive 2000/31/EC) exempts certain intermediaries from indirect liability under certain, well defined circumstances. The present case raises questions as to the scope and interpretation of Article 12 of the E-Commerce Directive, in particular with regard to fundamental rights. Concretely, the referring court in Tobias Mc Fadden v Sony Music Entertainment Germany GmbH asks under which circumstances and to what extent operators of publicly accessible Wi-Fi networks can be held liable for infringements of works protected by copyright, and what type of injunctions can be ordered against such operators.

Continue reading

POMFR: What form of government for the European Union and the Eurozone? (Fabbrini et al, eds.; Hart Publishing 2015).

By Daniela Jaros

A couple of months ago, an interesting volume edited by Federico Fabbrini, Ernst Hirsch Ballin and Han Somsen entitled „What form of government for the European Union and the Eurozone?“ appeared on the EU law book market. Containing contributions of many renowned scholars of EU law and EU politics, it seeks to explore the impact of the Euro-crisis on the institutional setting, the distribution of competences and the balance of power as well as issues of legitimacy and accountability within the Eurozone and ultimately within the European Union. Continue reading

Neues aus dem Elfenbeinturm: March 2016

Jean Monnet Doctoral Workshop “Interactions Between European Union and International Law”

City University London, 23 June 2016. Deadline for abstract submission: 25 March 2016.

Conference “Boosting the Enforcement of EU Competition Law at Domestic Level”

Radboud University Nijmegen, 3 June 2016. Deadline for abstract submissions: 31 March 2016.

Workshop “The Disintegration of Europe”

Hertie School of Governance, Berlin, 30-31 May 2016. Deadline for abstract submissions: 1 April 2016.

Seminar “Transnational Solidarity: Setting the Boundaries”

Center for Transnational Legal Studies, London, 1 April 2016. (Free) registration needed.

Conference “Environmental Rights in Europe and Beyond”

Lund, 21-22 April 2016. (Free) registration needed.

Conference “Existe-t-il encore un seul non bis in idem aujourd’hui?”

University of Nancy, 28 April 2016. Registration needed.

Vienna Journal on International Constitutional Law Conference 2016

Vienna University of Economics and Business, 23 September 2016. Deadline for abstract submissions: 15 May 2016. Continue reading

Restriction of the freedom of movement for beneficiaries of international protection (Joined Cases C‑443/14 and C‑444/14, Alo and Osso v Region Hannover)

By Margarite Helena Zoeteweij

Introduction

On 1 March 2016 the Court of Justice of the European Union gave its judgment in the joined cases of Ibrahim Alo and Amira Osso, Cases C-443/14 and C-444/14, ruling that the EU’s Qualification Directive does not sanction the imposition of restrictions of the freedom of movement for beneficiaries of subsidiary protection, and that such a limitation is not justifiable for reasons of territorial sharing of social assistance burdens, while at the same time leaving it up to the referring German Federal Administrative Court to decide whether the limitation can be justified for  reasons of migration and integration policy. The judgment comes in the midst of Europe’s biggest migrant crisis since World War II, and affects especially the rights of the beneficiaries of subsidiary protection status – those seekers of international protection that do not qualify as ‘refugees’, – the number of which is currently booming in Europe. The judgment will have instant and far-reaching consequences on the leeway of the national authorities in their dealings with beneficiaries of subsidiary protection status, especially since the Court confirms that, in principle, refugees and beneficiaries of subsidiary protection status are entitled to the same catalog of rights contained in Chapter VII of the Qualification Directive. Continue reading