GC & others vs CNIL and Google: This is a special case

On the 24 September 2019, the Grand Chamber of the Court of Justice (hereafter: ECJ) released its judgment in the second of two cases in as many weeks concerning the ‘Right to be forgotten’. The first, Google v CNIL, tacked the territorial scope of the right. In the second, GC, AF, BH, and ED v Commission nationale de l’ínformatique et de Libertes (CNIL), Premier ministre, and Google LLC (hereafter: GC), the Court tackled a request for a preliminary ruling after the French data protection authority (CNIL) refused to require Google to dereference various links to third party websites in the list of results displayed following searches of their names.

A claimant known as GC wanted a link to a satirical photomontage depicting her in an illicit relationship with a politician removed from Google’s search returns. AF wanted search results removed that identified him as a public relations officer for the Church of Scientology, a position he no longer held. BH wanted deindexing of articles linking him to contemporaneous investigations into the funding of political parties, but that did not reveal their outcomes. ED had requested the de-indexing of articles that mentioned a prison sentence of seven years and ten years judicial supervision for sexual assaults on children under the age of 15. The common thread between all of the parties was that the links included special categories of personal data within the meaning of Article 8(1) and (5) of the now repealed Data Protection Directive 95/46/EC (similar provisions can now be found in Article 9 of the European Union’s General Data Protection Regulation). Continue reading

Implementation of the EPPO in Belgium: Making the Best of a (Politically) Forced Marriage?

  1. Introduction: Belgian Academic Study on the EPPO Implementation

Two years have passed since the adoption of the Regulation on the European Public Prosecutor’s Office (‘EPPO Regulation’ or ‘Regulation’), a legal and political milestone. The initial proposal of the Commission (discussed by V. Franssen on this blog) was published in 2013 and difficult legislative negotiations followed. National parliaments even pulled out a ‘yellow card’ (see this blog). The proposal reflected a strongly ‘federal’ logic, but after negociations, the EPPO eventually metamorphosed into a hybrid institution, linking up EU and Member State prosecutors. It is the fruit of conflicting visions (both at the EU and at the national level) on the need for a new institution, on its status with respect to existing law enforcement and on its authority. At some point the whole project seemed ‘dead in the water’, but the Commission finally managed to push it through under the form of enhanced cooperation, involving eventually 22 participating countries.[1] However, the EPPO’s creation does come across as a top-down policy choice of the political authorities, rather than a response to a pressing request from existing prosecution services or from Eurojust.

The EPPO should be operational by November 2020. The participating Member States must ensure that their national legal system is compatible with the Regulation by then. While regulations are directly applicable in the national legal order, the EPPO Regulation refers to national law for several aspects, e.g. the conditions, procedures and modalities for taking investigative measures (Art. 30). That makes the implementation process particularly tricky, especially since the logic behind the EPPO does not necessarily match the way in which criminal investigations and public prosecution are designed by Member State law. Even after the implementation of several so-called ‘Roadmap’ directives on suspects’ rights and victims’ rights, the approximation of national criminal procedures by EU law remains limited.[2] In addition, the EPPO Regulation sometimes uses terms that are unknown in national criminal procedure or redefine existing terms.

Member States also have to ensure the practical integration of the EPPO into their criminal justice systems. The EPPO is an ‘indivisible Union body operating as one single office with a decentralised structure’ (Art.  8(1), see also Art. 3(1)), in other words an EU-wide prosecution service with a central office in Luxembourg and decentralised offices at the national level (Art. 8(2)). Member States will inevitably navigate between the rules set by the Regulation and the margin of appreciation it leaves in order to respect the diversity of national criminal procedure (cf. Recital (15)).

The analysis below will first briefly summarise the main features of the EPPO to set the scene for the subsequent analysis. Then we will focus on some key issues in the implementation process, both in general and specifically for in Belgium, based on the outcome of an independent academic study conducted by the authors of this blogpost (the ‘academic team’) at the request of the Belgian Federal Public Service for Justice (i.e. the Ministery of Justice). This study was finalised in August 2019. Its findings may be useful for the other Member States which are in the process of making their systems compatible with the EPPO system. That said, the conclusions of the study on the (tremendous) implications of the EPPO for the prominent role of the customs and excises authorities in prosecuting customs offences will not be discussed in this blog post, as they are highly technical, mainly affect Belgium and Luxembourg, and would merit a separate contribution. Continue reading

Playing Chess like Commissioner Vestager

Every world chess champion possessed his own unique playing style. Tigran Petrosian was dubbed “Iron Tigran” due to his impregnable defensive style. Anatoly Carpov’s positional style earned him the nickname “boa constrictor”. Jose Raul Capablana was known as the “human chess machine” because of the relentlessly accurate manner in which he bested his opponents.

Were Commissioner Vestager to play high-level chess, she would probably play like Mikhail Tal. The so-called “Magician from Riga” was a formidable world chess champion. Known for his creative attacking style, Tal was daring and unpredictable on the chess board. His dramatic combinational play allowed him to confuse and rattle his opponents, who would usually proceed to make errors and concede defeat.

The way the board is set these days, few areas of EU competition law are as topical as fiscal state aid. The household names involved in the tax ruling cases (e.g. Apple, Amazon, Starbucks), coupled with the transatlantic tensions to which they have occasionally given rise, have brought state aid policy to the forefront of Commissioner Vestager’s work.

Building on some noteworthy quotes by Mikhail Tal, this post will endeavour to make sense of the different moving pieces on the state aid chessboard, describe the current state of play and evaluate the Commissioner’s “checkmating” odds. Continue reading

E-EVIDENCE: THE WAY FORWARD (Summary of the Workshop held in Brussels on 25 September 2019)

Editor’s introduction

On September 25, 2019, the Grenoble Alpes Data Institute, in cooperation with the Cross Border Data Forum and Microsoft, held in Brussels an academic workshop on the topic of cross-border access to electronic evidence, entitled: “E-Evidence: The Way Forward”. The goal of this workshop, organized by Professor Theodore Christakis, was to provide a convening space for European researchers and experts working on these issues to advance thinking about the challenges in the domain of government access to digitally stored data. At the meeting, the participants were invited to examine the recent legislative developments, especially the E-Evidence proposal currently under discussion in the European Parliament and the negotiations for an EU/US Agreement on cross-border access to electronic evidence that have just started.

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The Future of Bank Resolution after the General Court’s Tercas Judgment

The genesis of the EU bank resolution framework was based on the fundamental principle that failing financial institutions could not receive external financial support, be it industry financing or state aid unless they had first internalized their losses by placing the burden at least upon shareholders and junior creditors. However, the General Court’s ruling in the Tercas case in March 2019 seems to strike a heavy blow against these fundamentals by considering that Tercas bank’s recapitalization by a private banking consortium did not constitute state aid, even though the consortium was operating as a mandatory deposit guarantee scheme (DGS) and was obliged to reimburse deposits in case of liquidation, pursuant to the DGS Directive. In this context, this blog-post embarks on a brief analysis of the European risk management framework, and sails on to discuss the Tercas judgment and its implications for the future, especially if upheld in the pending appeal case before the Court of Justice of the EU (CJEU).

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Google v CNIL Case C-507/17: The Territorial Scope of the Right to be Forgotten Under EU Law

In its landmark ruling in Case C-507/17 Google v CNIL, the Court of Justice held that there is no obligation under EU law[1] for Google to apply the European right to be forgotten globally.[2] The decision clarifies that, while EU residents have the legal right to be forgotten, the right only applies within the borders of the bloc’s 28 Member States.

In its analysis, the Court considered the 1995 Data Protection Directive and the General Data Protection Regulation (GDPR) which entered into force on 25 May 2018 repealing the Directive.[3] The decision is critical because, at first glance, it appears to have closed the door for EU residents to demand a worldwide removal of their information, in certain circumstances, from search engine results under the GDPR. The Court explicitly set limits on the territorial scope of an individual’s right to de-reference. In simple terms, this means that Google is only required to remove links to personal data from internet searches conducted within the EU.

However, while Google and proponents of the freedom of expression and access to information have claimed this case as an ostensible win, a closer analysis of the Court’s decision shows a more nuanced approach which leads to a different conclusion. Though the Court conceded the limitations of current EU law in requiring global delisting, it also asserted salient points which open the possibility for national data protection authorities (DPAs) to require search engine operators to delist globally by recognizing their competence to enact laws with regards to the matter. In this sense, CNIL and other EU national DPAs could arguably lay claim to a more substantial victory under this ruling.

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Case C-128/18 Dorobantu – the Aftermath of Aranyosi and Căldăraru

On 15 October 2019, the Court published its judgement in Dorobantu, after a preliminary reference submitted by the Higher Regional Court of Hamburg, Germany. The case concerns the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009.

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An agenda for transparency in the EU

Transparency and openness of Union decision-making procedures are foundational values of the EU[1] and essential to a system under the rule of law. But are the existing EU standards of transparency adequate to ensure that these values translate to legitimate exercise of public powers on the European level? In view of today’s challenges, is the EU’s approach to transparency sufficient, given that it is an atypical constitutional structure exercising sovereign powers across multiple levels of government and in constant need of explaining itself?

The European Council’s strategic agenda for 2019-2024 identifies respect of the principles of democracy, the rule of law, and transparency as a key focus, instructing each institution to “revisit its working methods and reflect on the best way to fulfil its role under the Treaties”. We whole-heartedly agree: there is an urgent need for such soul-searching reflection. The EU institutions’ implementation practices do not always live up to the Treaties’ values and transparency objectives. Rectification of that failure is of paramount importance to the future of the EU.

Regrettably, the mission letter to Věra Jourova, Commission Vice-President-designate for ‘Values and Transparency’, provides no concrete actions to deliver on the commitments included in the strategic agenda to develop the potential of the EU as a modern, open legal system connected to its citizens. To help fill that lacuna, we propose a set of ideas and concepts to create a new agenda for transparency in the EU. This agenda should be realized within the new legislative cycle beginning with the new Commission coming to office in late 2019.

We identify two dimensions of transparency that must be addressed: (a) access to documents and (b) intelligibility of decision-making procedures. Without these, the possibility of holding those exercising powers to account does not exist. A lack of transparency is one of the breeding grounds for mis-information campaigns and conspiracy theories, reducing the public to recipients of rumors and falsified information designed to sway emotions. Functioning transparency arrangements, instead, offer reliable information sources and contribute to accountability through public debate, democratic participation and effective judicial review.

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