“To Ensure that the Common Values and the Law are Observed”. What to make of the value turn in the case law of the Court of Justice?

Blogpost 40/2023

“The obligation to observe the law takes precedence over the strict terms of the written law. Whenever required in the interests of judicial protection, the Court is prepared to correct or complete rules which limit its powers in the name of the principle which defines its mission”.

Advocate General F. Mancini in Case 294/93 Les Verts

In memory of the late Professor John Usher

Faced with the unprecedented and persistent backlash against its own authority coming from Poland, the Court of Justice finds itself in a delicate position: it is trapped between what is now clearly a counter-factual assertion (“common values”), on the one hand, and the pragmatic judicial path and mandate that binds the Court to the “community based on the rule law” mast against all odds, on the other. As the Court searches for the optimal positioning, and calibrates its judicial doctrines in today’s less than perfect Union, we in turn face a challenge of making sense of the paradigmatic jurisprudential shift(s) that ultimately affect the heart and soul of “an ever closer union among the peoples of Europe” and challenge the Member States’ continuing fidelity to it. This analysis argues that the mega questions of belonging are on the line here since “the values contained in Article 2 TEU define the very identity of the European Union as a common legal order”. Two important (and still underappreciated) questions lurk behind these words: who “we Europeans” are and what continues to keep us together in these turbulent times.Continue reading

Glukhin and the EU regulation of facial recognition: Lessons to be learned? 

Blogpost 39/2023

On July 4th 2023, the European Court of Human Rights (ECtHR) handed in its first judgement on the use of facial recognition (FR) in law enforcement. The Court ruled that Russia breached Articles 8 and 10 of the Convention by using the technology to find and arrest a peaceful demonstrator. The decision reignites the European debate on FR. For the European Parliament and several NGOs, the use of FR in public is incompatible with EU values and should be banned (Reclaim your Face, 2023; AlgorithmWatch, 2023; European Parliament, 2023). However, the reasoning of the ECtHR does not necessarily follow this assumption. The Court does not embrace a proactive stance in the case, leaving many questions open on the legitimate use (if any) of the technology. This “laid-back” approach may be justified by the exclusion of Russia from the Council of Europe. The ECtHR is aware that the decision will not be executed and might have decided to avoid any confrontation on the matter with other Contracting Parties. Still, this might also have been a chance for the Court to take some liberty and provide general guidance.  

Nonetheless, Glukhin is an interesting read to understand current issues in the regulation of FR, and what might be missing in the upcoming EU legislation. This analysis highlights its implications for the legislative process of the Artificial Intelligence Act (AIA). Continue reading

The ECB’s liquidity lines – insuring deposits, both domestically and abroad

Blogpost 38/2023

During the global financial crisis in 2008 and the March 2020 market turmoil, liquidity facilities for foreign central banks – especially those of the Federal Reserve Bank of New York – were seen as essential to stabilise global financial markets (Bahaj/Reis 2022). They enabled central banks around the globe to distribute the foreign exchange needed to their economies to alleviate funding strains experienced by their financial sector. Among others, the ECB has been one of the main beneficiaries of this global scheme since the demand for US dollars in Europe was extraordinarily high during those crises. Furthermore, it enjoyed privileged access to the NY Fed’s emergency dollars among other Western central banks. By contrast, other monetary authorities were only granted access to those emergency dollars through the FIMA repo facility (Murau et al. 2022). One must distinguish between two financial instruments central banks use to implement their liquidity lines to other central banks. Either they agree on a currency swap, or they set up a repurchase agreement (repo). Both contractual agreements are effectively secured loans, but the borrowing conditions are significantly better under a currency swap agreement.

At the same time, the ECB also established a net of lines providing euro liquidity to other central banks, mainly to those in the vicinity of the euro area (Albrizio et al. 2023). After the 2020 market turmoil, the ECB quickly extended its facilities for central banks, now allowing a broad range of counterparties to access euros through them. However, like its American peer, the ECB grants privileged access to euros via swap lines only to some foreign central banks. All the others can only access euros through repo facilities. There is one elephant in the room since the vicinity of the euro area mainly includes non-euro area Member States: the ECB accords better borrowing conditions to some Member States’ central banks than others (Spielberger 2023). It set up swap lines for the Sveriges Riksbank, the Danmarks Nationalbank, and the Narodowy Bank Polski, while the Magyar Nemzeti Bank and the Banca Naţională a României may only borrow euros through a repo line.

In short, the ECB and its peers in other jurisdictions actively established a web of liquidity lines over the last 15 years essential for the globalised financial system. By using two different financial instruments to implement them, they privilege some central banks over others, which, in the case of the ECB, raises questions about its standing towards non-euro area Member States.

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Children and the Artificial Intelligence Act: Is the EU Legislator Doing Enough?

Blogpost 37/2023

The negotiations for the EU’s Artificial Intelligence Act are in full swing and there is plenty of debate about the proposed Regulation. One issue that has largely been forgotten is the protection of children. Should there be some specific rules for protecting children in AI contexts? At the moment, the EU legislator seems to say no. Even though the proposal for the AI Act has evolved in directions that take into account fundamental rights, the articles of the Regulation have clearly not been written with children’s protection in mind.

Many actors have emphasised children’s rights in the digital environment. Perhaps most importantly, in 2021 the UN Committee on the Rights of the Child adopted a general comment on children’s rights in the digital environment. It points the way towards more effective protection of children’s digital lives. Certain guiding principles should inform the implementation of children’s rights: non-discrimination, best interests of the child, the right to life, survival and development and the respect for the views of the child. In addition, the comment stipulates that the evolving capacities of children should be respected.

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The General Court finds Frontex not liable for helping with illegal pushbacks: it was just following orders.

Blogpost 36/2023

WS v Frontex, case T-600/21, decided by the General Court on the 6th of September 2023, concerns a number of Syrian nationals who arrived in 2016 on the Greek island of Milos with the intention of claiming asylum. They made this intention clear but just a few days after they arrived they were put on a plane which took them to Turkey.  They had no idea they were being taken there until they arrived. There followed a period in a Turkish reception centre and other locations and ultimately a journey to Iraq, because they were afraid that the Turkish authorities would return them to Syria.

The applicants claimed that their summary expulsion from Greece to Turkey was unlawful. They also said that as a result of this unlawful pushback they had suffered immaterial and material damage, varying from emotional harm, to the costs of living in Turkey and travelling to Iraq. Since it was accepted by all parties, and found as a matter of fact by the General Court, that the transport to Turkey was a joint operation by the Greek Republic and Frontex, they sued Frontex for compensation for their damage. Continue reading

Requirements for GDPR compensation after the ECJ decision in UI v Österreichische Post

Blogpost 35/2023

When do you receive compensation for illegal data use? How do you calculate the amount? Is a compensation always monetary? The judgment of the Court of Justice of the European Union (ECJ) in Case C-300/21 brings us a step closer to the answers.

The judgment is the first ECJ decision on non-material damages under the General Data Protection Regulation (GDPR), as an answer to several questions referred by the Austrian Supreme Court. Similar cases pending before the ECJ will likely be answered in comparable terms.

This blog post is aimed at providing a summary of the ECJ decision. It also outlines the main takeaways, in particular in regard to national courts and future judgments. This is a follow-up to a previous blog post regarding the Opinion of the Advocate General (AG) Campos Sánchez-Bordona in the same case.

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Addressing the power imbalance in the fashion industry: Can the Corporate Sustainability Due Diligence Directive finally put an end to unsustainable practices in the fashion industry?

Blogpost 34/2023

Ten years after the Rana Plaza disaster, the landmark Corporate Sustainability Due Diligence Directive (CSDD) passed the European Parliament (EP) vote on the 1st of June 2023. Within the fashion industry, there is a power imbalance between brands, manufacturers and other stakeholders. Fashion brands have enormous power which allows them to set the rules for the rest of the value chain in order to reduce costs of production as much as possible. In order to meet these demands, suppliers have to fall back on unsustainable sourcing practices and exploitative labour practices. The EP’s ambitious position has the potential to address this power imbalance as it includes purchasing practices in the due diligence obligations for companies and allows for a stronger voice for stakeholders by strengthening the stakeholder engagement framework. This way, the Directive would be capable of ensuring sustainable and responsible corporate behaviour within the fashion industry. The visionary instrument can lead to a shift in focus for companies from a single economic view towards a holistic view where companies genuinely incorporate sustainability into the governance of business across global value chains.

The EP’s position forms a strong premise for the trilogue discussions between the European Parliament, the Council and the Commission. This blogpost argues that a strong legal framework that addresses the power imbalance is necessary to address unsustainable purchasing practices and increase stakeholder engagement. To this regard, the blogpost will first explain what unsustainable purchasing practices entail in the fashion industry and how the EP’s position will address these. Secondly, the blogpost will analyse the importance of conducting meaningful stakeholder engagement and will continue by showing how the EP’s position aims to strengthen the role of stakeholders in the due diligence process.Continue reading

The Protection of Journalists through the Proposed European Media Freedom Act

Blogpost 33/2023

In 2021, while addressing the European Parliament during her State of the Union address, the Commission President, Ursula von der Leyen, referred to the dangers faced by journalists, concluding that “[i]nformation is a public good. We must protect those who create transparency, the journalists.” At that point, almost four years had passed since the murder of the Maltese investigative journalist Daphne Caruana Galizia, and the European Union had yet to take any measures to address this issue. It would be for another year before the Commission would publish its proposal for a regulation establishing a common framework for media services in the internal market (European Media Freedom Act).Continue reading