Category: Fundamental rights

Neues aus dem Elfenbeinturm: October 2019

Call for Chapters: Personal Data Protection and Legal Developments in the European Union

Deadline for proposal submissions: 18 October 2019.

Conference “Judges in Utopia: Civil Courts as European Courts”

Amsterdam, 7-8 November 2019. Deadline for (free) registration: 18 October 2019.

Conference “Socially Responsible Foreign Investment under International Law”

Catholic University of Portugal, 24-25 October 2019. (Free) registration necessary.

Workshop “Gender Based Approaches to the Law and Juris Dictio in Europe”

University of Pisa, 19-20 June 2020. Deadline for abstract submissions: 15 January 2020.

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

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

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

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.

Neues aus dem Elfenbeinturm: May 2019

5th CLEER summer school on EU external Relations law

Brussels, 24-28 June 2019. Deadline for applications: 3 June 2019.

re:constitution Fellowships

Deadline for applications: 1 June 2019.

ELGS Summer School on Comparative Law & Global Governance

Sounion, 22-26 July 2019. Deadline for applications: 21 June 2019.

Conference “Zehn Jahre Vertrag von Lissabon. Reflexionen zur Zukunft der europäischen Integration”

Berlin, 21 June 2019. (Paid) registration necessary.

Seminar “Unravelling the Brexit Conundrum, Legal and Political Perspectives”

The Hague University of Applied Sciences, 27 May 2019.

Symposium “EU Citizenship 25 Years On : Civil and Economic Rights in Action”

University of Trento, 28 May 2019.

Helsinki Summer Seminar “International Environmental Law – Process as Decline”

Erik Castrén Institute of International Law and Human Rights, 26-30 August 2019. Deadline for applications: 31 May 2019.

Summer School “The Protection of Fundamental Rights in Europe”

Bertinoro, 23-28 June 2019. Deadline for application: 12 June 2019.

Workshop on counter-terrorism at the crossroad between international, regional and domestic law

Bocconi University, 13-14 June 2019. Online registration necessary.

Würzburger Europarechtstage “Die EU zwischen Niedergang und Neugründung: Wege aus der Polykrise”

University of Würzburg, 19-20 July 2019. Deadline for (free) registration: 11 July 2019.

3rd EDEN Conference “Paradise Lost? Policing in the Age of Data Protection”

Copenhagen, 19-20 September 2019. Deadline for early bird (paid) registration: 19 July 2019.

Conference “Towards European Criminal Procedural Law”

University of Nantes, 6-7 February 2020. Deadline for abstract submissions: 15 September 2019.

EU Equality Law: Looking Ahead after 20 Years of Policymaking*

By Sara Benedi Lahuerta and Ania Zbyszewska

The adoption of the European Pillar of Social Rights (‘the Pillar’) in 2017 and the 20-year anniversary of the entry into force of the Treaty of Amsterdam in 2019 provide an auspicious moment for not only take stock of accomplishments in the field of EU equality law and critically reflect on the past, but also to look forward. The Treaty of Amsterdam expanded the legal base (current Article 19 TFEU) for adopting EU legislation to six new anti-discrimination grounds (race or ethnic origin, religion or belief, disability, age and sexual orientation) and the recent adoption of the Pillar suggests that EU equality law and policy could now be at a pivotal point. In this brief blog post, we reflect on what, in our view, is one of the key current problems of EU equality law, namely, its (in)coherence at different levels (see Figure 1), and whether the Pillar carries the potential to -at least partially- address this issue. Continue reading

Finding Comfort between a Rock and a Hard Place Advocate General Szpunar on striking the balance in copyright law

By Justin Jütte

Opinions in Funke Medien v Germany (Case-469/17), Pelham v Hütter (Case C-476/17), and Spiegel Online v Volker Beck (Case C-516/17)

In three Opinions that address the balance between copyright as a fundamental right and the right to freedom of expression, Advocate General Maciej Szpunar suggests that external challenges to exclusive rights under copyright law should be limited to extreme cases. In his view, the balance between different fundamental rights in copyright must be struck by the legislature in order to avoid undermining the efforts of EU harmonization.

Background

At a time where European copyright reform is hotly debated and the policy process is at a breaking point that might result in highly unsatisfactory rules or a persistent standstill in the development of EU copyright law (a brief summary of the current status can be found here., Advocate General (AG) Szpunar has been asked to deliver opinions in three preliminary references. All cases have been referred to the Court of Justice of the European Union (CJEU) by the German Bundesgerichtshof (BGH), the Federal Supreme Court. All three references contain similar and even partly identical questions. The essence of the preliminary references lies in the question how copyright rules should strike the balance between the interests of the right holders and users of works that are protected by copyright.

Copyright grants the author of a work the exclusive right to authorise or prohibit a number of protected acts. Such acts include, most importantly, to make reproductions of the work and to make the work available to the public (in physical and intangible form). An overly broad application of these rights could be used to completely control the use of the work, which is why copyright law foresees exceptions and limitations to the exclusive rights for certain purposes. For example, works protected by copyright, or at least parts thereof, can be used for the purposes of quotation and news reporting. At EU level, these rights and exceptions are mainly harmonized by the Information Society Directive (Directive 2001/29/EC, also ‘InfoSoc Directive’). Article 5 of the InfoSoc Directive contains one exception which Member States (MS) are obliged to implement into their national laws and 20 optional exceptions which MS are at liberty to implement. As a general rule, MS are not allowed to maintain in their copyright laws exceptions or limitations that are not contained in Article 5 (special exceptions exists for certain types of works, such as computer programs in Article 5 of Directive 2009/24/EC and original databases in Article 6 of Directive 96/9/EC); recital 32 of the Directive states that the list in Article 5 is exhaustive. There also exist so-called related rights, or neighbouring rights, which do not protect the author, but rather individuals who create, for example, sound recordings. For instance, the InfoSoc Directive and the Directive on rental and lending rights and on certain rights related to copyright in the field of intellectual property (Directive 2006/115/EC) grant producers of sound recordings similar rights to those enjoyed by authors.

This year the InfoSoc Directive turns 18, and although technology and society and the way we interact with works protected by copyright have changed, the elementary rules of copyright have remained unchanged. The longer Article 5 matured the less palatable it became for those who longed for more flexibility in the EU copyright rules. Technological developments, the Internet, social media and other modern phenomena made the list seem outdated. Exceptions and limitations struggled to  accommodate new business models and the application of new technologies that implied the reproduction, even if only for purely functional purposes, of works protected by copyright. European scholars looked with moderate envy to the US where the US fair use doctrine constitutes a flexible moderating norm that can balance the interests of right holders and users on a case-by-case basis.

Many also turned to fundamental rights as a last resort to force open the exhaustive list of Article 5. The right to freedom of expression, in particular, was used as an argument to suggest that exceptions to the exclusive rights must exist beyond the limited list of copyright exceptions of the InfoSoc Directive.

This post does not discuss in detail the analyses of AG Szpunar that pertain exclusively to the interpretation of exclusive rights and exceptions and limitations. They have already been discussed here for Pelham and here for Funke Medien  and here  and here for Spiegel Online. Instead, this contribution focuses on the balance the Advocate Generals strikes between the right to freedom of expression and the right to property within copyright law.

Continue reading

European Data Protection and Freedom of Expression After Buivids: An Increasingly Significant Tension

By David Erdos

On 14 February the Court of Justice of the EU (CJEU) handed down its decision in Buivids, a case which pitted an amateur individual online publisher against the Latvian Data Protection Authority (DPA).  This important case raises fundamental questions concerning the scope of European data protection, the ambit of the personal/household exemption, the legal definition of journalism and the role of data protection as regards to this and also related academic, artistic and literary expression.  The Court’s answers to these questions highlight the close and tense interface between European data protection and freedom of expression.  At the same time, they provide only relatively limited insight as to how the serious tension between data protection, special expression and freedom of expression more broadly should be resolved.  What they do suggest, however, is that not only national legislators but also courts and regulators have active and important roles toplay within this space.  The full implications of this, as well as further guidance on how to balance data protection and special expression, should be provided in the forthcoming case of Stunt which will require the Court to consider whether national courts should disapply the ban on pre-publication injunctions against special expression processing which is set out in UK data protection legislation.  In addition, Grand Chamber CJEU judgments on internet search engines and data protection are awaited both in relation to sensitive data and the geographical reach of any remedy here.  In sum, slowly but surely, an albeit messy corpus of European jurisprudence on data protection and freedom of expression is in the process of gestation. Continue reading

Neues aus dem Elfenbeinturm: February 2019

Radboud Economic Law Conference “New Directions in Competition Law Enforcement”

Radboud University, 24 May 2019. Deadline for abstract submissions: 22 February 2019.

Doctoral Workshop “Bilateralism versus Multilateralism”

University of Geneva, 19-20 September 2019. Deadline for abstract submissions: 15 March 2019.

Summer School “Human Rights in Theory and Practice”

University of Leipzig, 1-7 September 2019. Deadline for early bird registration: 31 March 2019.

American Society of Comparative Law Annual Meeting “Comparative Law and International Dispute Resolution Processes”

University of Missouri, 17-19 October 2019. Deadline for abstract submissions: 20 May 2019.

A Parallel Universe: Advocate General Bot in Opinion 1/17

By Harm Schepel

Introduction

All is clear, then: CETA’s Investment Chapter is perfectly compatible with EU Law. According to Advocate General Bot, the agreement is wholly separate from the normative (as opposed to the factual) universe of EU law, and merely protects readily identifiable ‘foreigners’ investing in the EU in the same way as it protects readily identifiable ‘European’ investors in foreign lands. From what we know of the hearing, the Advocate General provides not much more than a useful summary of the talking points offered by the Council, the Commission and the vast majority of the 12 intervening Member States, remarkably united in a bid to save the EU’s new external trade and investment policy. Clearly, the pressure on the Court to follow suit will be enormous. And yet. It is true, CETA builds strong fences to make good neighbors. But let spring be the mischief in me: CETA cannot wall out what EU Law walls in.[i]

Continue reading

AG Bot in Opinion 1/17. The autonomy of the EU legal order v. the reasons why the CETA ICS might be needed

By Szilárd Gáspár-Szilágyi

  1. Background

The EU’s exercise of its post-Lisbon competences over foreign direct investment (FDI) has been anything but smooth. In Opinion 2/15 the CJEU clarified the EU and Member State competences over the EU’s new generation free trade and investment agreements, resulting in the splitting of the EU‑Singapore agreement into a separate trade and investment agreement. Then, in Achmea the Court found investor-state arbitration (ITA) clauses under intra-EU BITs to be incompatible with EU law, which will result in the termination of almost 200 intra-EU BITs and the non-enforcement of ITA awards rendered under them within the EU. Now, everyone is anxiously awaiting the outcome of Opinion 1/17 – requested by Belgium under the insistencies of Wallonia – and whether the Investment Court System (ICS) under CETA is compatible with EU law. This opinion will not only affect the entry into force and conclusion of the trade and investment agreements with Canada, Singapore, Vietnam and Mexico, but it will have broader implications for the multilateral ISDS reform process and the EU’s investment policy.

Therefore, Advocate General Bot’s extensive opinion delivered on 29 January 2019 (first commentaries here and here) in which it found the CETA ICS to be compatible with EU law deserves scrutiny. I will only focus on the AG’s arguments concerning the exclusive jurisdiction of the Court of Justice over the definitive interpretation of EU Law. In a separate post, Harm Schepel will focus on the AG’s arguments on non‑discrimination. Continue reading

Part IV Mini-Symposium on EU Citizenship in the Shadow of Brexit: (EU Withdrawal) Texts, Pretexts and Epignosis in the United Kingdom

By Dora Kostakopoulou

In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading

Part III Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Right of UK nationals to vote in European Parliament elections in the EU-27

By Oliver Garner 

Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading

Part II Mini-Symposium on EU Citizenship in the Shadow of Brexit: Political participation by EU citizens in Scotland after Brexit

By Mark Lazarowicz

Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading

Part I Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Brexit effect – European Parliamentary Elections in the UK

By Ruvi Ziegler

The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading

Introduction to the Mini-Symposium: EU Citizenship in the Shadow of Brexit

By Oliver Garner

On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies  a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightman judgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements.   Continue reading

The Pilatus Bank scandal: time to reconsider banking supervision, anti-money laundering and whistle-blower’s protection in the EU

By Dimitrios Kafteranis

On Monday 23 April 2018, the European Commission released its proposal on the protection of persons reporting on breaches of Union law. The proposal of the European Commission comes after pressure of the European Parliament and other organisations calling for a coherent protection of whistle-blowers at the EU level. This pressure results partially from different scandals that were revealed by whistle-blowers such as Panama Papers or the case of the Pilatus Bank in Malta. The Commission’s proposal aims to set common minimum standards to protect whistle-blowers when they report breaches of EU law. It has several legal bases and covers a wide-range of EU areas such as consumer protection, financial services and the protection of privacy and data. The reporting procedure follows the ‘classic’ three-tier model for whistle-blowing, that is reporting firstly internally, then to the designated authorities and as a last solution to the public. The text is innovative in the sense that it proposes a wide definition of the whistle-blower ranging from trainees to ex-employees. The European Commission regards whistle-blowing as an enforcement tool for the prevention, detection and prosecution of illegalities affecting EU law.

For the future, it is compelling to pursue the negotiations between the two co-legislators of the EU (European Parliament and Council) in order to follow the challenges on the question of whistle-blowing at the national and European level. These negotiations could take many years. This post aims to introduce the reader to the proposal for a Directive on the protection of whistle-blowers by cross-referring to the case of the Pilatus Bank where a journalist and a whistle-blower are involved. The purpose is to highlight that there is a need for an EU Directive on the protection of whistle-blowers and to demonstrate that the proposed EU Directive would have better protected the Pilatus Bank whistle-blower. Furthermore, this contribution will demonstrate the problematic nature of money laundering and banking supervision at the EU level. Following the creation of the Banking Union, the interconnectivity of banks is a fact and a problem in one country can create a domino effect to the others. For example, the Pilatus Bank scandal does not only concern Malta but the European banking system as a whole. Continue reading

Joined cases C-569/16 and C-570/16 Bauer et al: (Most of) the Charter of Fundamental Rights is Horizontally Applicable

By Eleni Frantziou

The EU case law on the horizontal effect of fundamental rights is not the average lawyer’s go-to example of coherence, clarity, or adequate judicial reasoning. To give credit where credit is due, however, in a series of cases over the last year, the Court has significantly improved this state of affairs. The Grand Chamber’s judgment in Bauer et al is the most noteworthy affirmation of this change of direction so far. This post maps out what might now be safely described as the current position on the horizontal effect of fundamental rights in the European Union and attaches a threefold (mostly positive) meaning to the Bauer judgment. However, using Bauer as a springboard, it also raises two broader questions regarding the status of social rights and the non-horizontality of directives, which may require further refinement in future case-law. Continue reading

Quod Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland

By Marco Antonio Simonelli

On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.[1]

However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.

The concerns related to the transparency of the procedure and the discretion of  national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.

Continue reading