Data protection policy, in particular the right to protection of personal data in Article 8 of the EU Charter, has remained firmly within the EU law limelight in recent years. This right played a key role in seminal judgments of the CJEU such as Schecke and Eifert, where for the first time a provision of secondary legislation was annulled for incompatibility with the Charter, and in Digital Rights Ireland (discussed earlier on this blog), where for the first time an entire Directive was annulled on the same grounds. Furthermore, in Google Spain (considered here) this fledgling right was ostensibly given precedence over the more established right to freedom of expression in certain circumstances, leading to a media furore on both sides of the Atlantic. 2015 was no different in this regard as much attention focused on the Court’s judgment in Schrems (discussed here), which invalidated the 15 year old Safe Harbor data sharing agreement between the EU and the US, and on the culmination of four years of negotiation on the new Proposed General Data Protection Regulation in December.
For good or for bad, the EU data protection juggernaut appears unstoppable, leaving in its wake legal instruments that do not meet its strict standards. Yet, in the shadows of these well-documented events, other noteworthy developments occurred. 2015 also saw the Dutch referring court withdraw its preliminary reference in Rease and Wullems, thereby regrettably removing the opportunity for the CJEU to pronounce upon the margin of discretion of national Data Protection Authorities (DPAs) when adopting a de minimis approach to their enforcement strategy to the detriment of individual or small group complainants. The Court did, however, deliver a number of largely overlooked yet significant data protection judgments in 2015. This contribution will focus on two significant cases which the CJEU delivered in the first week of October, immediately prior to the Schrems judgment, in Bara and Weltimmo. These preliminary references allowed the Court to clarify the interpretation of obligations and exemptions under the Data Protection Directive, as well as the Directive’s enforcement in online situations. Continue reading →
As observed earlier on this blog, criminal ne bis inidem is a key issue for the development of an Area of Freedom, Security and Justice (AFSJ), particularly in order to ensure the freedom of movement of EU citizens by protecting them from multiple prosecutions in different Member States.
In the last years the CJEU has developed an autonomous transnational concept of ne bis in idem (i.e. independent from the national understanding of this principle) based upon the provisions contained in Articles 54 et seq. of the Convention Implementing the Schengen Agreement (CISA), and the principle of mutual trust between Member States. The ‘transnational’ EU ne bis in idem is also a fundamental right enshrined in Article 50 Charter of the Fundamental Rights of the European Union (Charter or CFREU), thus part of the primary law of the Union.
This comment focuses on the opinion delivered last December by the Advocate General Yves Bot in Kussowski (C-486/14, 15 December 2015, not yet available in English). After the Spasic case (C-129/14 PPU, 27 May 2014, commented by Marletta on this blog), this new case offers the CJEU another opportunity to clarify the relation between Article 50 CFREU and the CISA provisions, and thus the real added value of the Charter. Furthermore, the Court is called upon to indicate to which extent mutual trust should shape the relations between national criminal justice authorities. Continue reading →
Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.
Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.
Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading →
As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.
Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading →
Recently, journalists from all EU member states raised, for the first time ever, a joint voice before the Court of Justice of the European Union (CJEU) against the refusal of the European Parliament (EP) to give access, on grounds of personal data protection, to information on how MEPs spend their allowances.
This development is no surprise as the endeavour by individuals and non-governmental organisations alike to hold the EU to its democratic imperative of openness and transparency has been a clearly increasing tendency over the years. However, meeting the expectations of the civil society is not always an easy task for the EU institutions, which must keep a fair balance between transparency and the protection of an individual’s privacy and integrity throughout their processes.
This balance has become essential in the present context of increasing numbers of requests for public access to EU institutions documents containing personal data. Yet, the question remains unclear as to when it is legitimate for an institution to refuse access to documents on the ground of personal data protection.
The following post attempts to shed some light on this question by discussing two recent CJEU judgments whose common threads allow for some interesting consistency to be found in the Court’s logic. On the basis of these judgments, it would seem that for the Court, the use of personal data protection as a justification for refusing requests for access to documents should be restricted. Such requests are essential to increase the confidence of citizens in the EU and require that, provided the conditions are fulfilled, full access be given to the institutions’ documents, personal data included. The Court specifies that the context of public mistrust in the EU and the potential dual role of its decision-makers must weigh in the institutions’ assessment of the conditions. Continue reading →
In this Grand Chamber judgment the Court gave important guidance on the interpretation of the new TFEU provisions 43 (2) and (3). These provisions provide a legal basis for the Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP) and replace the old article 37 EC. Significantly, article 43 (2) TFEU makes the CFP subject to the ordinary legislative procedure and thus gives the Parliament a new and important role in the CAP and the CFP. Under the old article 37 EC the Parliament was only consulted. Article 43 (3), on the other hand, provides that the Council shall adopt measures ‘fixing and allocation of fishing opportunities’ without any role for the Parliament.
In this judgment, the Court found a clear hierarchical relationship between the two provisions in the context of the CFP which was already addressed by the Court in the Venezuela judgment (2014). Article 43 (2) is reserved for policy decisions whereas article 43 (3) TFEU is to be used mainly for measures implementing those policy decisions. Policy decisions also encompass determining the mechanism for calculating fishing limits. However, the Court did not accept the analogy between article 291 (2) TFEU and article 43 (3) TFEU. The judgment is an important victory for the European Parliament and strengthens and shapes its role in the determination of the Common Fisheries Policy, one of the major policy areas of the Union. Indeed, as the Advocate General pointed out, ‘in constitutional terms, the importance of the present cases can hardly be overestimated’.
Post Danmark II constitutes the latest signal as to the view of the CJEU with regard to the assessment of rebates granted by dominant firms. As this was the first preliminary reference in a rebates case ever, there were high expectations with regard to the judgment (see e.g. here). It was seen as a golden opportunity for the Court to provide meaningful guidance, unconstrained by the limitations of judicial review in a truly fascinating and heavily disputed field of EU competition law. Indeed, this is the area where the European Commission made the most significant efforts to alter the current state of the law (see paras 37-45 of the Commission’s Enforcement Priorities Paper), albeit unsuccessfully (see judgments in Intel and Tomra). Hence, the key issue was whether the CJEU would ultimately yield to the increasing pressure to move to a more economically inspired approach to rebates under Article 102 TFEU. Overall, the ruling is valuable in that it clarifies the standard applicable to rebates granted by dominant undertakings. Continue reading →
Challenging EU rules on the basis of EU agreements is very difficult. Challenging EU rules on the basis of the Aarhus Convention is pretty much impossible. In ClientEarth v Commission the Court reasoned once again that the Aarhus Convention could not be relied upon to invalidate EU secondary legislation. In this case, the Court found that ClientEarth could not rely on the Aarhus Convention to challenge the Public Access to Documents Regulation (Regulation 1049/2001) in order to obtain commissioned studies on compliance by Member States with EU environmental law in the context of infringement procedures. One of the arguments put forward by the Court was that the Aarhus Convention could not be relied upon because it ‘was manifestly designed with the national legal orders in mind’. This is an extraordinary statement, since the EU is party to the Convention and thus bound by it. It was no doubt inspired by the concern to protect the infringement procedure contained in article 258 TFEU, raising a number of questions on the relationship between EU primary, secondary and international law. Continue reading →
Competition law judgments are notorious for their length. An extreme example is the 5134 paragraph judgment in Cement. In most cases the appeal judgment is significantly shorter, as with the 391 paragraphs in the appeal in Cement. AC-Treuhand is no exception to that rule, but it takes it to the extreme by reducing the Court’s reasoning to a single paragraph. This single paragraph supports the finding that cartel facilitators are also liable under Article 101 TFEU. The issue whether a company that is not active on the affected market should also be brought under the scope of article 101, is a difficult matter. However, the Court finds it ‘surprisingly’ easy to solve this matter, which raises practical points as well as some fundamental questions. We will discuss and comment on this one paragraph below, as well as on some of the fluff that surrounds it, but we will start with the facts. Continue reading →
In this post I will analyse a particular aspect of State aid law: the temporal scope of secondary instruments applied to assess the aid’s compatibility. The case at hand deals in particular with Regulation (EEC) 1191/69, which originally came into force on 1 July 1969, and Regulation (EC) 1370/2007, which repealed the former instrument and came into force on 3 December 2009.
The dispute began in February 2010, when the Commission issued a decision addressed to the Kingdom of Denmark, declaring that the public transport service contracts granted to Danske Statsbaner SV (DSB) constituted (non-notified) State aid under Article 107(1) TFEU, but that such aid was compatible with the internal market on the basis of Regulation (EC) 1370/2007.
Mr. Andersen, a competitor of DSB on the route between Compenhagen and Ystad, challenged the decision in front of the General Court (GC), and the Commission subsequently appealed against the latter’s decision in front of the EU Court of Justice (CJEU).
The case C-105/14 Ivo Taricco and Others delivered on 8 September 2015 is a new example of activism of the EU Court of Justice (CJEU). It draws consequences from Åkerberg Fransson C-617/10 (already commented on this blog here and here), but this time goes in another direction as it extends the obligation of Member States in the field of criminal law for a more effective penalisation at the expense of national criminal procedure. Once again the obligations related to VAT collection are at stake, as was the case in Åkerberg Fransson, however this time from the point of view of the protection of the financial interests of the Union. In this field, the Member States have indeed the duty to counter fraud affecting the financial interests of the Union (Article 325 (1) TFEU), the so-called “PIF fraud” (where PIF is a French acronym for ‘protection des intérêts financiers de l’Union’). In particular, they are required to “take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests” (Article 325 (2)). In this Grand Chamber ruling, the Court took an opportunity to clearly express its will to include VAT fraud in the definition of PIF fraud and to significantly extend the obligations of the Member States to effectively penalize such fraud. Given the difficulties related to the ongoing negotiations on the project of PIF Directive, this decision is very timely. Continue reading →
Citizenship is typically conceived of as membership in a political community, carrying with it certain rights and obligations, and especially the right to participate in the government of that community. Union citizenship has until recently been deficient in that regard. Despite the existence of a democratically elected assembly since 1979 in the form of the European Parliament, the links between this parliament and the status of Union citizenship have been ambiguous with the parliament representing not a single group of Union citizens but rather the ‘peoples’ of Europe, those peoples being defined by Member States and national law.
The Treaty of Lisbon changes that paradigm, stating boldly that the European Parliament represents no longer the peoples of Europe but rather the ‘citizens of the Union’. The link between Union citizenship and the European Parliament being made apparent, it was perhaps only a matter of time before the Court drew the conclusion that the rights of Union citizenship contained a stand-alone right to vote in European Parliamentary elections. That decision has just occurred in the judgment in Delvigne. Continue reading →
On 6th of October, in Schrems vs. Data Protection Commissioner, the CJEU, following the controversial Opinion of AG Bot, put an end to the specific regime regulating data flows to the US. The 4600 US companies using this agreement are now forced to rethink how to ensure the continuity of the protection when data are transferred from EU to the US. In this milestone ruling, the Court also reaffirmed the key role played by national Data Protection Authorities (DPAs) in the European system of data protection, and clarified the different competences of the European Commission, the DPAs and the courts –including the ECJ- in assessing the adequate level of protection offered by a third country. Continue reading →
On Wednesday Koen Lenaerts was elected President of the European Court of Justice by the Judges of the Court for the term of three years. Mr Lenaerts succeeds Vassilios Skouris who had been president for the last twelve years. Mr Lenaerts is the second Belgian President of the Court after Josse Mertens de Wilmars (1980-1984) and had been Vice-President for the past three years. Also elected: Mr Tizzano as the new Vice-President of the Court and the Presidents of the different chambers.
[Edit: there is an interesting interview with Mr Lenaerts by Wall Street Journal journalist Valentina Pop. You can find it here.]
We take this opportunity to congratulate Mr Lenaerts, Mr Tizzano and the other elected Presidents and discuss some of the institutional and historical aspects of today’s elections. Continue reading →
In November 2014 the Dano judgment attracted unusual public attention, not least because of its importance for UK Prime-Minister David Cameron’s campaign against the phenomenon of ‘welfare tourism’. Although political and administrative attention has been redirected towards the mounting refugee crisis, scholars, administrators and some politicians have been eagerly awaiting the CJEU’s Alimanovic judgment in the sensitive field of EU citizens’ right to equal treatment as regards access to national welfare benefits. Dano made clear that Member States may reject claims to social assistance by EU citizens who have no intention to work and cannot support themselves. Alimanovic gave the Court the opportunity to clarify the application of this principle in the more complicated factual situation of an EU citizen who applies for social benefits after having worked for 11 months. In its bid to contribute to ‘legal certainty’ and ‘transparency’, Member States will for sure welcome the Court’s judgment, but the legacy of Brey still complicates the desired carte blanche for national authorities to refuse any claim to social assistance by indigent EU citizens. Continue reading →