Access to Documents Relating to the Environment – Even in Light of Dooming Controversy?

Blogpost 27/2024

Transparency and environmental policy are two key issues in the upcoming European Parliament elections. In this regard, the General Court’s (‘the Court’) ruling on 13 March 2024 in the case of ClientEarth and Leino-Sandberg v Council provides some highly relevant insights. The Court annulled two Council decisions refusing to disclose the Council Legal Service’s opinion on the 2021 proposal to amend the Aarhus Regulation. While the Court’s critical approach to the Council’s justifications for secrecy is to be applauded, and the outcome of the case is certainly to be welcomed, this post suggests that an alternative route to reach the same conclusion would have been more desirable. The Court now seems to deliberately gloss over the document’s potential legal and political significance, turning a blind eye to the heated and ongoing debate on the Union’s (non-)compliance with the Aarhus Convention. Instead of downplaying the relevance of the document’s content, we argue that a more principled emphasis on demanding openness in the realm of environmental policy would have led the Court to the same outcome but would have also made the Union’s transparency framework more robust, in line with the objectives of the Aarhus Convention.

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Is this fair? The ECJ rules on prohibition of assignment and ex officio control of unfairness (C-173/23 Air Europa Líneas Aéreas)

Blogpost 26/2024

1. Introduction

Air carriers often use clauses which prohibit the assignment of passenger claims. Such clauses have a generic scope but were mainly introduced to deter the assignment of claims under Regulation 261/2004 on air passenger rights (Air Passenger Rights Regulation – APRR) to commercial companies. The fairness of such clauses under the Directive 93/13/EEC on Unfair Terms in Consumer Contracts (UCTD) has been disputed. In its judgment in C-173/23 Eventmedia Soluciones SL v Air Europa Líneas Aéreas SAU ECLI:EU:C:2024:295 (Judgment), the European Court of Justice (ECJ) ruled on some aspects of the duty of national courts to assess of their own motion the unfairness of contractual terms in the context of air carriage under the 1999 Montreal Convention on the liability of the international air carrier (MC99).

The MC99 establishes uniform rules on certain aspects of the liability of air carriers for international carriage by air. It is one of the most widespread international conventions and is also open for signature by Regional Economic Integration Organizations, such as the EU (Article 53(2)). The MC99 was signed by the (then) European Community on 9 December 1999 and entered into force on 28 June 2004. Ever since, the MC99 provisions have been an integral part of the EU legal order (C-344/04 IATA and ELFAA, para. 36), save for the provisions on cargo, for which competence rests with the EU Member States. Hence, the ECJ is competent for the interpretation of the MC99 provisions on passengers and luggage.

This post presents the judgment of the ECJ, including its legal background. Subsequently, comments are provided regarding (1) the ex officio assessment of unfairness of contractual terms under the UCTD and (2) the validity of clauses prohibiting assignment of passenger claims under the APRR, according to the case law of the ECJ and national courts. The conclusion of the post evaluates the importance of the judgment for the analysed topics.

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The Thin Edge of the Wedge: Youth Mobility between the EU and the UK?

Blogpost 25/2024

On 18 April 2024 the European Commission issued a recommendation for a Council Decision authorising the opening of negotiations for an agreement between the EU and the UK on youth mobility. This is the first time since the signing of the Trade and Cooperation Agreement (TCA) in 2021 that the EU has proposed the conclusion of a legal framework for mobility of persons between the EU and UK. Free movement of persons ceased between the two as from 1 January 2021. Since then there has been a continuing exodus of EU nationals from the UK: 87,000 more EU nationals left the UK than came to it in 2023 (COM(2024)169 p 2). EU national students coming to the UK has dropped by 50%.

In response to this changing landscape of mobility, in 2023 the UK government has been approaching some (but not all) Member States regarding the possible negotiation of youth mobility arrangements based on existing UK national law. This unilateral action has sparked the Commission to seek a negotiating mandate from the Council to block possible bilateral arrangements between the UK and some Member States to the exclusion of others. This is consistent with the Council position adopted on 23 March 2018 that any future partnership between the EU and the UK on mobility of persons should be based on full reciprocity and non-discrimination among Member States.

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Choosing the Right European Commissioners: Politicians vs. Technocrats?

Blogpost 24/2024

The coming of spring promises many changes, including a newly elected European Parliament and a new college of Commissioners leading the European Commission. The re-opening of the Spitzenkandidaten system has also stirred the debate on the democratic legitimacy of the EU institutions. Focusing on the European Commission, one question that needs answering is about its members: are the European Commissioners creatures of the world of politics or instead independent experts of a technocratic ‘government’?

Looking at it from a constitutional perspective, the Commission is a unicum, with no one-to-one equivalent in nation states. The only substantive provision in the Treaties regarding the work of Commissioners is included in Article 17(3) TEU, which specifies that Commissioners shall be appointed ‘on the ground of their general competence and European commitment from persons whose independence is beyond doubt.’ However, that does not mean that Commissioners must be completely apolitical:  indeed, the Guidelines of the Commission provide for the possibility of Commissioners taking part in the campaigns and elections of the European Parliament (see Article 10).  While political standing helps to set the wheels in motion, there should also be a sense of democracy and direct responsibility to the electorate of Commissioners, if the Commission is to resemble a ‘European Government’. If priority is to be given to Commission duties over party commitment (Article 10(1) Commission Guidelines), then Commissioner candidates are hardly going to act in their neutral and professional capacity, if that would simultaneously mean kicking away the ladder that puts them in their current position. In other words, if Commissioners belong to political parties, this inherently puts them into a precarious conflict between party affiliation and their work as independent public officials (Gehring and Schneider p. 1). Continue reading

Following through on the Union’s values: The role of international law in setting legal limits on supporting Israel in its war on Gaza

Blogpost 23/2024

For six months, Israel has been waging a brutal offensive on Gaza, killing over 30.000 Palestinians, destroying more than 60% of the homes in Gaza, and making Gazans account for 80% of those facing famine or catastrophic hunger worldwide. High Representative Borrell described the situation as an ‘open-air graveyard’, both for Palestinians and for ‘many of the most important principles of humanitarian law’. Yet, the Union and its Member States seem unwilling to use their capacity to deter Israel from further atrocities. European leaders continue to express steadfast political support for Israel and to provide material support for the war by upholding pre-existing trade relations, including arms exports. This blogpost examines to what extent this continued support displayed by the Union and its Member States constitutes a violation of Union law. It does so in light of two recent rulings, both delivered by courts in The Hague, which suggest support for Israel in the current context might be problematic not just from a moral, but also from a legal standpoint. The central argument developed in this post is that Union law, when interpreted in a manner that respects – or at least does not undermine – the fundamental norms of international law, establishes sufficiently concrete obligations that the Union and its Member States currently do not meet given their continued support for Israel.

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Search queries and anonymisation: How to read Article 6(11) of the DMA and the GDPR together?

Blogpost 22/2024

The Digital Markets Act (DMA) is a regulation enacted by the European Union as part of the European Strategy for Data. Its final text was published on 12 October 2022, and it officially entered into force on 1 November 2022. The main objective of the DMA is to regulate the digital market by imposing a series of by-design obligations (see Recital 65) on large digital platforms, designated as “gatekeepers”. Under to the DMA, the European Commission is responsible for designating the companies that are considered to be gatekeepers (e.g., Alphabet, Amazon, Apple, ByteDance, Meta, Microsoft). After the Commission’s designation on 6 September 2023, as per DMA Article 3, a six-month period of compliance followed and ended on 6 March 2024. At the time of writing, gatekeepers are thus expected to have made the necessary adjustments to comply with the DMA.

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On the Threshold to a new electoral law: The Bundesverfassungsgericht’s Decision on Electoral Thresholds

Blogpost 21/2024

In February, the German Federal Constitutional Court (Bundesverfassungsgericht) rejected a motion regarding electoral thresholds in EU electoral law, finally allowing for the necessary national approval of Council Decision 2018/994. This Decision intends to amend the European Electoral act and, according to Article 223 (1) TFEU, must be approved by all Member States. Up until now, the court had held that thresholds in European elections were not compatible with German constitutional law. However, a draft legislative act proposes that some Member States would be obliged to establish electoral thresholds for European elections. With this new judgement, the Bundesverfassungsgericht joins other European courts in finding thresholds to be compatible with national constitutional law.

This blog post aims to provide context for a decision that might very well change the composition of the European Parliament.Continue reading

Case C-479/22 P, Case C-604/22 and the limitation of the relative approach of the definition of ‘personal data’ by the ECJ.

Blogpost 20/2024

On 7 March 2024, the ECJ released two very important decisions on the extent of the definition of ‘personal data’ under EU data protection law in cases C-479/22 P and C-604/22.

The latter case involves a Belgian non-profit organisation called IAB Europe which designed a tool, a framework called TCF, with the purpose of enabling website providers and data brokers to process personal data lawfully (see Paragraph 20).

The preferences that a user select via a consent management platform (CMP) are subsequently encoded in the TCF string which is a combination of letters and characters. The CMP places a cookie on the user’s device so that the cookie and the TCF string can be linked to the user’s IP address (see Paragraph 25). The Court was asked whether, in this context, a character string containing the preferences of a web user could be considered personal data in the hands of IAB Europe and whether IAB Europe could be regarded in this scenario as a (joint) controller.

The former case, which has already been discussed here, deals with a Greek researcher that was under investigation by the European Anti-Fraud Office (OLAF) for allegations relating to potential financial misconduct following the attribution of fundings granted by European Research Council Executive Agency (ERCEA) to carry out a research project.

OLAF published a press release concerning the ongoing investigation and its results, which led to an identification of the researcher by journalists. The researcher thus seized the General Court arguing that OLAF infringed Regulation 2018/1725, which is the regulation on the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data (EUDPR), as well as her right to the presumption of innocence.

In this case – and without digging into too much detail – the General Court in case T-384/20 basically held that the press release could not be seen as personal data since the German journalist who re-identified the researcher was an investigative journalist with particular knowledge in that matter and could not be seen as an “average reader” (“lecteur moyen” in French). The plaintiff appealed this decision, which gave rise to the decision of the ECJ in case C-479/22 P

In the next two sections we will discuss how these two judgments by the ECJ seem to limit the relative approach of what constitutes personal data as the Court adopts a definition of the notion of personal data which is more protective for data subjects. Eventually, in the last section it is argued that these decisions should not be overinterpreted since they limit the relative approach, without really ruling it off.

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