Third country law in the CJEU’s data protection judgments

By Christopher Kuner

Introduction

Much discussion of foreign law in the work of the Court of Justice of the European Union (CJEU) has focused on how it deals with the rules, principles, and traditions of the EU member states. However, in its data protection judgments a different type of situation involving foreign law is increasingly arising, namely cases where the Court needs to evaluate the law of third countries in order to answer questions of EU law.

This is illustrated by its judgment in Schrems (Case C-362/14; previously discussed on this blog, as well as here), and by Opinion 1/15 (also discussed on this blog, part I and part II), a case currently before the CJEU in which the judgment is scheduled to be issued on 26 July. While these two cases deal with data protection law, the questions they raise are also relevant for other areas of EU law where issues of third country law may arise. The way the Court deals with third country law in the context of its data protection judgments illustrates how interpretation of EU law sometimes involves the evaluation of foreign legal systems, despite the Court’s reluctance to admit this. Continue reading

Neues aus dem Elfenbeinturm: July 2017

Seminar : « The EU FTAs : Do you really want to know ? A dialogue on transparency »

King’s College London, 14 July 2017. (Free) registration required.

Call for papers : Special issue on European Law

Utrecht Journal of International and European Law. Deadline for submissions : 25 August 2017.

Call for papers : Comparative Constitutional Law and Administrative Law Quarterly

Deadline for submissions : 1 September 2017.

Call for papers: European Data Protection Law Review 2017 Young Scholars Award

Deadline for submissions: 15 October 2017.

Opinion 2/15: Maybe it is time for the EU to conclude separate trade and investment agreements

By Szilárd Gáspár-Szilágyi

Opinion 2/15 is already causing quite a stir in legal academia. While some take an EU law perspective, others look at it from the perspective of investment law or public international law. In this short post I will not focus on purely legal issues. Instead, I will look at the Opinion’s effects on the EU’s investment policy and propose a change in the Commission’s approach to the negotiation of international economic agreements. Continue reading

Neues aus dem Elfenbeinturm: June 2017

Call for papers “The Process of European Integration between Limits and Antinomies: Citizenship, Immigration and National Identities”

Review “Freedom, Security & Justice: European Legal Studies”. Deadline for abstract submissions: 30 June 2017.

Call for expressions of interest – Members of the Scientific Committee of the Fundamental Rights Agency

Vienna. Deadline for applications: 7 July 2017.

Workshop on “Current and Future Challenges of EU Agencification”

Brussels, 20 September 2017. Deadline for abstract submissions: 7 July 2017.

EJLS 10th Anniversary Conference Call for Papers “60 Years of European Integration: Reflections from Young Legal Scholars”

European University Institute, 16 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for submissions “Trade, Law and Development”

Deadline for submissions: 20 September 2017.

Opinion 2/15: Adding some spice to the trade & environment debate

By Laurens Ankersmit

Opinion 2/15 might keep legal scholars, practitioners, and policy-makers busy for the foreseeable future. Many aspects of the ruling deserve comment and further discussion (see already for starters the blogposts here, here, here, here, here, and here) and I would like to follow up my previous post with some comments on an intriguing paragraph of the Opinion: paragraph 161 on the possible suspension of the agreement for a breach of one of its ‘sustainable development’ provisions. The ECJ’s statements here touch upon a long-standing debate whether labour and environmental provisions in trade and investment agreements should be enforceable. The ECJ found that Parties could indeed (partially) suspend or even terminate the agreement for breaches of such provisions. Practicalities aside, this finding is certainly a positive step from a social and environmental point of view. Continue reading

Cautious Openness: the Spanish Constitutional Court’s approach to EU law in recent national case law

By Mario García

In recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future. Continue reading

Taken for a Ride? Advocate General Szpunar’s Opinion on Uber’s Status

By Andrew Murray

Case C-434/15 Asociación Profesional Elite Taxi v. Uber Systems Spain SL, Opinion of the Advocate General, 11 May 2017

Introduction

Uber is among the best known sharing economy services offering what Uber would call a platform that allows the introduction of people offering ride shares to those seeking lifts to their destination. Uber have been clear and single minded in their legal status in a number of cases around the globe: they’re not a taxi firm they are a technology company.  This position has been challenged by AG Szpunar in his recent opinion in the case of Asociación Profesional Elite Taxi v. Uber Systems Spain SL. His position that “it is undoubtedly the supply of transport which is the main supply and which gives the service economic meaning” is being seen as a major setback for Uber. Continue reading

Case C-133/15 Chávez-Vílchez and Others – Taking EU Children’s Rights Seriously

By Maria Haag

Can the Netherlands deny a third-country national (TCN), who is the primary carer of Dutch children, the right to reside? Two weeks ago, the Court of Justice of the European Union (CJEU) held in Chávez-Vílchez and Others that under EU law it cannot. In this important Grand Chamber decision, the CJEU has reaffirmed and expanded its landmark Ruiz Zambrano decision. Continue reading

‘It’s not you, it’s me’: Article 50 and the future EU-UK relationship

By Alessandra Asteriti

On 14 May 2017, the Secretary of State for Exiting the European Union David Davis was interviewed on ‘Peston on Sunday’ and the topic was, unsurprisingly, Brexit. The contentious issues of the sequencing of the negotiations according to the Council’s Guidelines for withdrawal arose. As is now known, the Chief Negotiator for the EU, Michel Barnier, has insisted that the issues of EU citizenship rights, the UK’s financial liabilities and the border between the Republic of Ireland and Northern Ireland are resolved before any discussion of the future trade relationship with the UK can proceed. This position was further affirmed in the Negotiating Directives issued by the Council on 22 May 2017 which deal exclusively with the negotiating priorities of the Withdrawal Agreement. The goal of this contribution is to point out that the plain language of Article 50 does not in fact envision the necessity of a future, separate agreement to deal with the future relationship between the EU and the UK, contrary to much debate both at UK and EU level. To be perfectly clear: I am not arguing that in fact the future relationship is not likely, or even bound, to entail such as an agreement. The argument is instead entirely predicated on the textual interpretation of the Article. Continue reading

A link too far: CJEU rules that sale equals communication and streaming from unlawful sources is illegal (C-527/15, Filmspeler)

By Bernd Justin Jütte

 In its judgment on 26 April the CJEU extends the scope of the right of communication to the public under Article 3 of the Information Society Directive (Directive 2001/29/EC), which grants a right holder the exclusive right to communicate a work or a related right to the public, to cover the sale of devices which contain pre-installed software that provides its users with links to unlawful streaming content. It further found that viewing such content is not privileged by the exception of Article 5(1) for temporary reproduction of the same directive, thereby rendering the provision as well as the streaming of unlawful content illegal, and thus increasing the circle of persons who can be held liable. Continue reading

Opinion 2/15 and the future of mixity and ISDS

By Laurens Ankersmit

Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Free Trade Agreement (EUSFTA) delivered Tuesday received considerable attention from the press. This comes as no surprise as the Court’s Opinion has consequences for future EU trade deals such as CETA and potentially a future UK-EU FTA. Despite the fact that the ECJ concluded that the agreement should be concluded jointly with the Member States, the Financial Times jubilantly claimed victory for the European Union, belittling Wallonia in the process. This victory claim calls for three initial comments as there are aspects of the Opinion that might merit a different conclusion. Continue reading

Neues aus dem Elfenbeinturm: May 2017

Conference on the Legitimacy of Unseen Actors in International Adjudication

The Hague, 26-27 October 2017. Deadline for abstract submissions: 31 May 2017.

Call for applications: Summer School „Fundamental Rights and EU Trade Agreements”

University Centre of Bertinoro, 25-30 June 2017. Deadline for applications: 15 June 2017.

Conference “Freedom under Pressure – Data protection and privacy, the freedom of movement in the EU and property protection”

Ghent University, 7-8 December 2017. Deadline for abstract submissions: 15 June 2017.

Workshop “Resolving the Tensions between EU Trade and Non-Trade Objectives: Actors, Norms, and Processes”

Utrecht University, 10 November 2017. Deadline for abstract submissions: 1 July 2017.

Conference “Constitutionalism in a Plural World”

University of Porto, 22-23 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for Papers for the Irish Journal of European Law Volume 2017 on Brexit

Deadline for submissions: 28 July 2017.

Implementation of the Aarhus Convention by the EU – An Inconvenient Truth from the Compliance Committee

By Benedikt Pirker

Introduction

Arguably one of the most important international environmental agreements of our days, the Aarhus Convention (AC), obliges its contracting parties to provide access to information, public participation and access to justice in environmental matters. Based on a communication by the NGO ClientEarth, the Compliance Committee – the compliance mechanism put in place under the AC – handed down an important decision (called ‘findings and recommendations’ in the Aarhus terminology) with regard to the European Union on 17 March 2017. The present post aims to highlight the most important findings of the Committee, which – in no uncertain terms – criticized a number of features of current EU law as a failure to implement the AC. Continue reading

AG Saugmandsgaard Øe in C-329/15: Towards a novel approach to the state resources criterion?

By Gian Marco Galletti

Introduction

In his Opinion issued in case C-329/15 ENEA SA w Poznaniu v Prezes Urzędu Regulacji Energetyki on 22 March 2017, AG Saugmandsgaard ØE held that the quota-based system designed by Poland in order to support the production of energy from cogeneration (‘Combined Heat and Power electricity’ or ‘CHP electricity’) should be sheltered from the application of State aid rules as it does not fulfil all the conditions enshrined in Article 107(1) TFEU (‘Article 107(1)’). In particular, the missing piece of the ‘aid jigsaw’ is, according to AG Saugmandsgaard ØE, that the national measure in question does not entail the use of ‘State resources’.

The interpretation of the State resources criterion is a classic battleground between the effectiveness of EU rules and the protection of national regulatory autonomy. On the one hand, a broad reading of the State resources criterion is justified by the fact that Member States may feel tempted to assume a ‘private form’ to evade the application of State aid rules; on the other hand, a narrow reading averts the risk of enabling the Commission to conduct ‘an inquiry on the basis of the Treaty alone into the entire social and economic life of Member States’, as famously summarized by AG Jacobs in Viscido. The EU case law has, after some fluctuations, opted for a broad approach leaving only limited room for a finding of no State resources and therefore no aid (PreussenElektra). This was particularly evident when the Court was called to examine energy production-supporting measures taken by the Member States: the Netherlands (Essent Netwerk), Austria (Austria v Commission), France (Association Vent de Colère) and Germany (Germany v Commission) all unsuccessfully attempted to persuade the European judges that their feed-in tariff schemes did not engage public resources.

From a policy perspective, if this Opinion were to be upheld by the Court this would be the first (post-PreussenElektra) happy ending for the Member States in their struggle to design State aid-compliant legal mechanisms for funding the switch towards environmentally friendlier energy mixes and production processes.

From a strictly legal perspective, the reasoning of the AG in the present case deserves special attention in that it appears to point to a narrower, and arguably more accurate, interpretation of both layers of the State resources criterion. Continue reading

Neues aus dem Elfenbeinturm: April 2017

Conference “Le droit pénal et la procédure pénale face aux défis de la société numérique”

University of Liège, 28 April 2017. Deadline for (partly paid) registration: 27 April 2017.

Call for papers “First EU Business Law Forum – The Influence and Effects of EU Business Law in the Western Balkans”

Széchenyi István University, 15-16 June 2017. Deadline for abstract submissions: 4 May 2017.

Call for papers “International Society for the Philosophy of Law and Social Philosophy World Congress – Peace Based on Human Rights”

Lisbon, 16-21 July 2017. Deadline for abstract submissions: 15 May 2017.

Commission ECI Registration Decision Annulled in Court Victory for Minority Safepak initiative

By James Organ

The European Citizens Initiative (ECI) is an agenda-setting tool that gives EU citizens an opportunity to directly influence EU policy. There were high expectations of the ECI enhancing EU democracy when launched in 2012, but only 3 ECIs have so far managed to collect the one million signatures needed to request the Commission to propose a legal act of the Union. EU citizen appetite for direct democracy remains strong, however, and there has been a recent resurgence in the ECI. The number of new initiatives has increased – including last week an ECI aiming to strengthen EU citizenship in the face of Brexit – and new ECIs are being strongly supported, with the Ban Glyphosate ECI gathering almost 700,000 signatures in less than 3 months.

The other important area of ECI activity has been in the General Court where citizens are challenging the Commission’s restrictive approach to ECI registration: almost 40% of ECIs rejected to date. The first three judgments upheld the Commission’s registration decisions, but in the Minority Safepak case ECI organisers successfully challenged a Commission ECI registration decision for the first time. Published last month, the Court decision itself was only a minor, narrow victory for the ECI that left many questions still to be answered in its on-going legal saga. However, following last week’s surprising Commission response to the judgment, the annulment of the Commission’s decision to refuse registration of the Minority Safepak ECI could yet be a landmark decision in defending EU citizens’ rights of democratic participation and direct democracy in the EU. Continue reading

Achbita v G4S: Religious Equality Squeezed between Profit and Prejudice

By Gareth Davies

And below: Bougnaoui v Micropole: Mildly Surreal Thoughts on Competence and Clothes (particularly when worn by women)

The two cases were decided on the same day by the Grand Chamber of the Court of Justice. Although they both concern essentially the same fact set – a firm wishing to dismiss an employee who insists on wearing an Islamic headscarf – the questions referred were different, and the substantive discussion is found in Achbita. Bougnaoui, briefly noted at the end of this blog, addresses just one, odd, point: the Court confirmed that the fact that a Muslim woman wears a headscarf does not make her incapable of doing her work. That is little comfort though – since Achbita decided that she can probably be dismissed anyway.

Achbita

In Achbita v G4S the Court of Justice was asked whether a private firm could prohibit the wearing of Islamic headscarves by employees who dealt with customers, or whether this violated the ban on religious discrimination in the workplace, found in Directive 2000/78. The claimant, Ms Achbita, worked as a receptionist for G4S in Belgium. When she began wearing a headscarf she was warned that it was against company policy, which disallowed all religious, political or philosophical signs in the workplace. When she continued, she was dismissed.

The Court found that under the right circumstances a company might be entitled to have a policy of this sort. One condition was that the policy must be in writing – in the interests of certainty and clarity. Another condition was that it must apply without distinction to all beliefs. Continue reading

“In Light of the Guidelines”: Brexit and the European Council Revisited

By Darren Harvey

Introduction

Following the delivery by Sir Tim Barrow of a letter to European Council President Donald Tusk notifying the European Council of the United Kingdom’s intention to withdraw from the EU, the two-year time period within which the UK and EU shall negotiate and conclude a withdrawal agreement has commenced.

According to Article 50(2) TEU, the first step in this process is for the European Council to agree upon a set of guidelines defining the framework for the EU side of the negotiations.

A first draft of these guidelines was circulated by European Council President Donald Tusk on Friday 31st March 2017.

The purpose of this post is to follow up from a post written last October on the role of the European Council and the Brexit process. Continue reading

Brown Bears II: Aarhus and the Charter show their teeth

By Laurens Ankersmit

In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:

  1. The legal effects of the Aarhus Convention in the EU legal order;
  2. The meaning of Article 47 of the Charter of Fundamental Rights (CFR).

Continue reading

The UK and sickness insurance for mobile citizens: An inequitable mess for Brexit negotiators to address

By Gareth Davies

As the Brexit negotiations become a reality, the position of UK citizens living in other EU states, and of EU citizens living in the UK attracts ever more discussion, particularly within the UK, where there has been great political support for the idea that those already established in the UK should not simply be thrown out. Nevertheless, aspects of UK procedure and bureaucracy are making it extremely difficult for Union citizens to obtain recognition of their right to reside. At the heart of this is the lack of a UK population register and of any registration requirement, meaning that most Union citizens moving to the UK do so without formalities. That may seem refreshingly easy at first. However, it means that if a Union citizen wants the UK to recognize that they have a right of permanent residence, they have to prove retrospectively that their last five years have been both in the UK, and in compliance with the terms of the Citizenship directive. That raises enormous evidential problems. One of these is to do with sickness insurance: while taking no active steps to require this from new arrivals, the UK takes the view that only those who were privately insured against almost all medical risks were actually lawfully present. This comes as a nasty shock to many migrant citizens – most of them, like over 90% of UK citizens, use the National Health Service rather than private insurance. The discussion below explains how this situation has arisen, and considers whether the UK’s standpoint complies with Union law. It suggests that this issue should not be ignored in Brexit negotiations, as it concerns the rights and lives of many thousands of Europeans. Continue reading