Category: Fundamental rights

Tele2 Sverige AB and Watson et al: Continuity and Radical Change

By Orla Lynskey

Introduction

The CJEU delivered its judgment in Tele2 Sverige AB and Watson on 21 December 2016. The Court had been asked by a Swedish and British court respectively to consider the scope and effect of its previous judgment in Digital Rights Ireland (discussed here). The judgment reflects continuity in so far as it follows in the line of this, and earlier judgments taking a strong stance on data protection and privacy. Yet, the degree of protection it offers these rights over competing interests, notably security, is radical. In particular, the Court unequivocally states that legislation providing for general and indiscriminate data retention is incompatible with the E-Privacy Directive, as read in light of the relevant EU Charter rights. While the judgment was delivered in the context of the E-Privacy Directive, the Court’s reasoning could equally apply to other EU secondary legislation or programmes interpreted in light of the Charter. This judgment will be a game-changer for state surveillance in Europe and while it offered an early Christmas gift to privacy campaigners, it is likely to receive a very mixed reaction from EU Member States as such. While national data retention legislation has been annulled across multiple Member States (Bulgaria, Czech Republic, Cyprus, Germany and Romania), this annulment has been based on an assessment of the proportionality of the relevant measures rather than on a finding that blanket retention is per se unlawful. For those familiar with the facts and findings, skip straight to the comment below. Continue reading

EU-Morocco Trade Relations Do Not Legally Affect Western Sahara – Case C-104/16 P Council v Front Polisario

By Sandra Hummelbrunner and Anne-Carlijn Prickartz

Shortly before Christmas, the Court of Justice delivered its highly anticipated judgment in case C-104/16 P Council v Front Polisario, on appeal against the General Court (GC) judgment in case T-512/12 Front Polisario v Council, an action for annulment brought by Front Polisario, the national liberation movement fighting for the independence of Western Sahara. In this action, Front Polisario sought the (partial) annulment of Council Decision 2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalisation measures on agricultural and fishery products and amendments to the 2000 EU-Morocco Association Agreement. The main bone of contention was the application of the Liberalisation Agreement to the territory of Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but which is considered by Morocco to be an integral part of its sovereign territory and is largely under Morocco’s effective control.

The Front Polisario, as the internationally recognised representative of the Sahrawi people, contended that the Agreement was contrary to both EU and international law, including the principle of self-determination, international humanitarian law, and EU fundamental rights. In first instance, the GC partly concurred with Front Polisario’s submissions, annulling the contested Decision insofar as it applied to Western Sahara (for a more extensive review of the GC judgment, see our Article on Front Polisario v Council). Deciding on appeal, the Court of Justice took a different path, managing to avoid a discussion on the merits by focussing on the GC’s interpretation of the territorial scope of application of the Liberalisation Agreement as determined by Article 94 of the EU-Morocco Association Agreement, which provides for the application of the Agreements to ‘the territory of the Kingdom of Morocco’. Continue reading

Opinion 1/15: AG Mengozzi looking for a new balance in data protection (part II)

By Maxime Lassalle

The AG’s proportionality test

After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized. Continue reading

Opinion 1/15: AG Mengozzi looking for a new balance in data protection (part I)

By Maxime Lassalle

On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.

This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement. Continue reading

Neues aus dem Elfenbeinturm: October 2016

Conference « New Instruments to Promote the Correct Application of the EU Charter of Fundamental Rights »

Florence, 28 October 2016. Deadline for (free) registration : 18 October 2016.

Colloquium « Les religions et le droit du travail »

Université de Rouen, 20-21 Octobre 2016. Free access.

Conference « Computers, Privacy & Data Protection : The Age of Intelligent Machines »

Brussels, 25-27 January 2017. Deadline for submissions : 22 October 2016.

Call for Papers: ESIL Conference “The Role of the European Parliament in the Conclusion and Implementation of International Agreements on International Economic Law Issues

European Parliament, Brussels, 9 December 2016. Deadline for abstract submissions: 7 November 2016.

Call for papers : One Day Symposium on Transnational and International Environmental Crime – Synergies, Priorities and Challenges

University of Lincoln, 15 February 2017. Deadline for abstract submissions : 18 November 2016.

Call for submissions Comparative Constitutional Law and Comparative Law Quarterly

Deadline for submissions : 27 November 2016.

Housing Law Research Network 3rd Annual Housing Law Symposium: Human Rights, Housing and Dispute Resolution

Malmö University, 23-24 March 2017. Deadline for abstract submissions : 1 January 2017.

 

 

Neues aus dem Elfenbeinturm: September 2016

Call for Papers: Regional Human Rights Systems in Crisis

Wisconsin International Law Journal Annual Forum, University of Wisconsin, 31 March 2017. Deadline for abstract submission: 23 September 2016.

Call for Papers: EUSA Conference “Uncertain Destinations: The European Union at 60”

Miami, 4-6 May 2017. Deadline for abstract submission: 30 September 2016.

Call for Papers: Workshop on the legislative choice between delegated and implementing rule-making

German Research Institute for Public Administration, Speyer, 20 March 2017. Deadline for abstract submission: 10 October 2016.

Conference: An Administrative Procedure Act for the EU?

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

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

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 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

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

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

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

Short-term Residence, Social Benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)

By Dion Kramer

Following its strict findings in the Dano and Alimovic judgments, the Court of Justice of the European Union could not but state the obvious in case C-299/14 (García-Nieto and others): Member States may exclude economically inactive EU citizens from social assistance who are residing in the host Member State for a period shorter than three months. Again, the Court opts for legal certainty in rigorous and explicit terms and emphasises the objective of preventing the foreign EU citizen from becoming an unreasonable burden on the host Member State’s social assistance system. However, just like with Dano and Alimanovic, this comes with a human cost. This time the Court neglected the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker. Continue reading

Case C-25/15 Balogh – The Translation and Interpretation Directive and (questionable) special procedures

By Stijn Lamberigts

Advocate General Bot killed two birds with one stone in his Opinion in Balogh (currently not available in English). After Covaci, previously analyzed here, the CJEU has now been asked to examine the role of the Translation and Interpretation Directive in special procedures. This Directive is one of the so-called Roadmap Directives, the latest attempt of the EU to increase the mutual trust between Member States (MS) in the field of criminal justice, by establishing EU minimum rules for procedural safeguards.  In his Opinion Advocate General Bot gave the referring Court, the Regional Court of the Budapest metropolitan area (Budapest Környéki Törvényszék), more than it had bargained for.  Continue reading

Rétention d’un demandeur d’asile et droits fondamentaux – L’ arrêt J.N. de la CJUE (C-601/15 PPU)

Par Sarah Progin-Theuerkauf et Samah Posse-Ousmane

Dans un arrêt important du 15 février 2016 dans l’affaire J.N., la Cour de justice de l’Union européenne a confirmé la validité de l’art. 8 par. 3, premier alinéa, sous e), de la directive 2013/33/UE (directive « accueil »). La Cour s’est notamment prononcée sur sa compatibilité avec l’art. 6 de la Charte des Droits fondamentaux de l’Union européenne (UE) et l’art. 5 CEDH (tel qu’interprété par l’arrêt Nabil). Si le raisonnement de la Cour dans le cas d’espèce paraît judicieux, il laisse ouvertes certaines questions relatives à la détention des demandeurs d’asile en général. Continue reading

Neues aus dem Elfenbeinturm: February 2016

Conference “The European Convention on Human Rights and the Crimes of the Past”

European Court of Human Rights, Strasbourg, February 26 2016. Deadline for registration: 19 February 2016.

Conference “Searching for Solidarity in EU Asylum and Border Policies”

Brussels, 26-27 February 2016. (Paid) registration needed.

Conference “Reforms in UN Treaty Bodies and the European Court of Human Rights: Mutual Lessons?”

University of Oslo, 29 February 2016. (Free) registration needed.

Conference “Mapping the challenges in economic and financial criminal law: a comparative analysis of Europe and the US”

University of Luxembourg, 17 March 2016. (Free) registration needed.

Workshop “Austerity and Law in Europe”

University of Amsterdam, 16-17 June 2016. (Free) registration needed.

EUI Summer Courses on Human Rights and on the Law of the European Union

European University Institute, Florence, 20 June-1 July/4-15 July 2016. Deadline for applications: 4 April 2016.

Conference “Adjudicating international trade and investment disputes: between interaction and isolation”

University of Oslo, 25-26 August 2016. Deadline for abstract submissions: 1 March 2016.

Ne bis in idem in the EU: Two important questions for the CJEU (Opinion of the AG in C-486/14 Kussowski)

By Michele Simonato

As observed earlier on this blog, criminal ne bis in idem 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

POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

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

Top ten most read posts of 2015

By the editors

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

Neues aus dem Elfenbeinturm: December 2015

Workshop „The Age of Austerity: A New Challenge for State Powers“

University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.

CJICL Conference „Public and Private Power“

University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.

Workshop „The preliminary reference procedure as a compliance mechanism of EU environmental law“

Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.

Conference „Building Consensus on European Consensus“

European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.

Doctoral Colloquium „Responsibility in International and European Law, Philosophy and History“

University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.

EELF Conference „Procedural Environmental Rights: Principle X in Theory and Practice“

Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.

Conference „Intra-EU BITs and Intra-EU Disputes“

University of Vienna, 7 March 2016. (Paid) registration needed.