Category: EU constitutional law

Neues aus dem Elfenbeinturm: July 2018

Summer School «The External Dimension of EU Migration and Asylum Policies: Human Rights, Development and Neighbourhood Policies in the Mediterranean Area”

University of Barcelona, 17-21 September 2018. Deadline for applications: 20 July 2018.

Summer School “Cinema Human Rights and Advocacy”

Venice, 27 August- 5 July 2018. Deadline for applications: 31 July 2018.

Conference of the Court of the Eurasian Economic Union “International Justice and the Intensification of Integration Processes”

Minsk, 18-19 October 2018. Deadline for registration: 15 August 2018.

AALS Annual Meeting “Judicial Diversity in Transnational Courts”

New Orleans, 2-6 January 2019. Deadline for abstract submissions: 15 August 2018.

Call for papers “Irish Journal of European Law”

Deadline for submissions: 28 September 2018.

ESIL Research Forum “The International Rule of Law and Domestic Dimensions: Synergies and Challenges”

University of Göttingen, 4-5 April 2019. Deadline for abstract submissions: 30 September 2018.

Conference “Operational Cooperation in European Union Criminal Law”

University of Nantes, 1 February 2019. Deadline for abstract submissions: 1 October 2018.

Free Movement of Same-Sex Spouses within the EU: The ECJ’s Coman judgment

By Alina Tryfonidou

Introduction

In its much-awaited judgment in Coman, delivered earlier this month, the Court of Justice ruled that the term ‘spouse’ for the purpose of the grant of family reunification rights under EU free movement law, includes the same-sex spouse of a Union citizen who has moved between Member States. This means that in such situations, the Union citizen can require the State of destination to admit within its territory his/her same-sex spouse, irrespective of whether that State has opened marriage to same-sex couples within its territory.

This is a landmark ruling of great constitutional importance which has the potential of changing the legal landscape for the recognition of same-sex relationships within the EU. It is, also, a judgment which is hugely significant at a symbolic level, as through it the EU’s supreme court made it clear that it considers same-sex marriages as equal to opposite-sex marriages, in this way reversing the discriminatory stance it had adopted in the early 00’s, when it ruled in D and Sweden v. Council that ‘[i]t is not in question that, according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex’. 

Continue reading →

Neues aus dem Elfenbeinturm: June 2018

Workshop “Constructing Legal Orders in Europe: The General Principles of EU Law”

University of Leicester, 29-30 June 2018. (Free) registration necessary.

Conference “EU external relations: Tackling global challenges?”

TMC Asser Institute, 6-7 December 2018. Deadline for abstract submissions: 30 June 2018.

Call for Papers “EuConst Colloquium 2018”

Amsterdam, 5 October 2018. Deadline for abstract submissions: 1 July 2018.

Conference “Waiting for Brexit: Open issues in the Internal Market and in the Area of Freedom, Security and Justice”

University of Milan-Bicocca, 19 October 2018. Deadline for abstract submissions: 15 July 2018.

Conference “Religion and Ethnicity on the International Bench”

University of Oslo, 4-5 October 2018. Deadline for abstract submissions: 18 July 2018.

PhD Seminar “The External Dimension of the Area of Freedom, Security and Justice”

University of Luxembourg, 25-26 October 2018. Deadline for submissions: 5 September 2018.

Call for Papers “The Visegrád Group”

Anglo-American University Law Review. Deadline for submissions: 1 October 2018.

Height Discrimination in EU Law: The Case of Kalliri (C-409/16) at the Court of Justice

By Uladzislau Belavusau

Introduction

In the recent years the Court of Justice of the European Union, has pronounced twice about physical requirements as a matter of discrimination. The first case – Kaltoft (C-354/13) – concerned obesity and was briefly annotated on European Law Blog. The present commentary will look into another case from the Union’s Court – Kalliri (C-409/16) – this time regarding discrimination based on height requirements.  While it is usually excessive rather than low weight that causes discrimination, height entails a contrary correlation. By now, rich studies about stature in psychology and sociology unequivocally show that shorter people are more likely to face discrimination than their taller compatriots, with employment patterns often imitating biological dispositions about size amongst animals. Social hierarchies are, thus, clearly height-bound, permeating our public image, wages, choice of work partners and even success of presidential candidates.

What the present case of Kalliri (2017) illustrates in addition is that the stigma of short stature in employment has particular repercussions for women. Ms. Maria-Eleni Kalliri brought a complaint in front of the administrative court in Greece regarding the rejection of her application for police training due to insufficient height. The default height requirement for such applicants under Greek rules was 170 centimeters for both men and women. Ms. Kalliri fell short of this criterion by 2 centimeters and therefore complained that her dismissal was a matter of gender discrimination, since men are on average more likely to satisfy this requirement. While the lower tribunal found this to be discrimination, a higher Greek court requested a preliminary ruling from the Luxembourg court on whether the height requirement indeed constitutes sex discrimination under EU law. Continue reading →

K.A and others – The Zambrano Story Continues

By Sarah Progin-Theuerkauf

On 8 May 2018, with the judgment in K.A. and others vs. Belgium, the Court of Justice of the European Union (ECJ) has added another piece to the now quite big puzzle that surrounds the legal status of EU citizens (and their third country family members). It ruled that Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a third country national solely on the basis of an existing entry ban against the third country national. The Court argued that if the refusal compels the EU citizen to leave the territory of the EU as a whole, it deprives EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Like in the Zambrano case, the EU citizens in K.A. had never exercised their right to free movement.

Just a quick reminder of the Court’s main findings in Zambrano: In that case, Belgium had denied a right of residence to a Colombian father of two Belgian minors. The Court held that, by not giving the father of a Belgian child a derived residence right, Belgium will oblige the child to leave the territory of the EU as a whole, and therefore deprive the child of the genuine enjoyment of the substance of the rights’ conferred by the EU citizenship status. It was argued – and here is the revolutionary aspect – that this even applies in purely internal situations, e.g. where the EU citizen has never exercised his or her right to free movement. Normally, EU law only applies in situations with a cross-border element. Continue reading →

Neues aus dem Elfenbeinturm: May 2018

1st International Forum of the Hungarian European Law Institute Hub – The impact and effects of Brexit on EU Law and UK Law

Eötvös Loránd University, Budapest, 14 September 2018. Deadline for abstract submissions: 20 May 2018.

Workshop – Challenges to EU Law and Governance in the Member States

European University Institute, 8 June 2018. Deadline for registration: 22 May 2018.

Conference “OLAF and the EPPO in the new institutional setting for the protection of the financial interests of the EU”

Utrecht University, 15 June 2018. Deadline for (free) registration: 4 June 2018.

International Symposium on Religious Pluralism and European Integration: New Challenges

University of Milan-Bicocca, 28 September 2018. Deadline for abstract submissions: 4 June 2018.

Conference on the implementation of EU laws relating to cross-border judicial measures in civil and criminal law

Czech Bar Association, Prague, 7 June 2018. (Free) registration necessary.

Mangold Recast? The ECJ’s Flirtation with Drittwirkung in Egenberger

By Eleni Frantziou

In its recent ruling in Egenberger (C-414/16), the Court’s Grand Chamber has redrawn the boundaries of a constitutional problem German courts are rather familiar with: the horizontal application of the right not to be discriminated against in situations coming within the scope of EU law. The case raises two important constitutional issues: firstly, whether the horizontal effect of EU fundamental rights must be direct; and, secondly, how the balance between conflicting fundamental rights should be reached in a private dispute. This post argues that, on the one hand, in Egenberger,the Court offers a methodologically more principled account of the horizontal effect of fundamental rights than its case law has provided to date. On the other hand, its approach towards the balance between religious freedom and non-discrimination is problematic because it does not offer the degree of clarity and guidance that is needed to accommodate horizontal conflicts of rights under the Charter framework. Continue reading →

Neues aus dem Elfenbeinturm: April 2018

Conference “Sovereigns and citizens in the Brexit bargain: Do rights count?” (Prof. Takis Tridimas)

Université de Liège, Amphithéâtre Portalis, 23 April 2018 (15:30-16:30).

Summer School “Parliamentary Accountability and New Technologies: Transparency, Privacy and Security Challenges”

LUISS Guido Carli University, Rome, 9-20 July 2018. Deadline for applications: 29 April 2018.

Call for papers: Edited Volume “Legal Impact Assessment of Brexit”

Deadline for submissions: 9 May 2018.

Workshop “The International Legality of Economic Activities in Occupied Territories”

T.M.C. Asser Institute, The Hague, 17 October 2018. Deadline for abstract submissions: 15 May 2018.

Conference “Procedural rights in criminal proceedings in the EU”

Universities of Utrecht, Leiden and Maastricht, 13-14 September 2018. Deadline for applications: 15 May 2018.

Conference “Human Rights Laws at a Crossroads: What Directions after Brexit?”

University of Leicester, 25 May 2018. (Free) registration necessary.

Workshop “Constitutional Protection of Minorities – Comparing Concepts, Models and Experiences in Asia and in Europe”

University of Trento, 4-5 May 2018. Registration necessary.

Summer School “Comparing Constitutional Adjudication – Islam in Constitutional Adjudication in Europe”

Dimaro, Italy, 30 July-3 August 2018. Deadline for applications: 26 April 2018.

Seminar “The Western Sahara Campaign Case”

Queen Mary University of London, 3 May 2018. Registration necessary.

Settling the dust? An analysis of Taricco II from an EU constitutional and criminal law perspective

By Giovanni Zaccaroni and Francesco Rossi

Many valuable contributions have been written (for example this blog post but also elsewhere, among many others) on the M.A.S. decision (M.A.S. and M.B., case C-42/17 a.k.a. Taricco II) and, more in general, on the Taricco saga. The majority of them, however, focus mainly on the criminal and constitutional law dimensions separately. In this contribution, we focus on these dimensions together: we believe that this decision is equally important for the relationship between the Court of Justice of the EU (CJEU) and the national Constitutional Courts as it is for the hazardous path of a harmonization of the general part of criminal law at EU level.

The reason why these two dimensions are usually examined separately lies on the different background of the scholars concerned. In this blogpost we have done the effort to put together and explain the importance of the M.A.S. decision from the viewpoint of a criminal lawyer and from the one of a (European) constitutional lawyer. To do that, this work will be divided in two main parts: we will firstly look at the relationship between the CJEU and the Italian Constitutional Court (ICC) (in the first part, sections I and II, written by Giovanni Zaccaroni). We will then see whether and how the decision advances the harmonization of criminal law at an EU level (the second part, sections III-V, written by Francesco Rossi). Continue reading →

How to Bring It Home – The EU’s Options for Incorporating the Fiscal Compact into EU Law

By Johannes Graf von Luckner

From North to South, from national governments to the Commission: EU Institutions and Member States are in agreement that a reform of the Economic and Monetary Union (EMU) is high on the political agenda. One aspect of such a reform is the integration of the Fiscal Compact into the EU legal framework, which the Member States committed to in the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG). With a French Government that is pushing for reforms, a German government that is finally in place, and a proposal for a directive drafted by the EU Commission on the table, it is likely that the topic will gain importance.

In three somewhat distinct steps, this post aims to explain the obligation to incorporate the Fiscal Compact into EU law (1.), explore one viable option to do so, which some of the treaty-drafters might have had in mind, namely the Enhanced Cooperation mechanism (2.), and analyse the (rather surprising) Commission proposal on the topic (3.). Continue reading →

EU-Morocco Trade Relations, Western Sahara and International Law: The Saga Continues in C-266/16 Western Sahara Campaign UK

By Anne-Carlijn Prickartz and Sandra Hummelbrunner

This February, the Court of Justice of the European Union delivered a judgment in which, one year after the C-104/16 P Council v Front Polisario judgment, once more the EU’s trade relations with Morocco took centre stage. Whereas in Front Polisario the Court was faced with the question of the validity of the EU-Morocco Association Agreement (AA) and Liberalisation Agreement (LA), this time the Court was tasked with determining the validity of the EU-Morocco Fisheries Partnership Agreement (FPA), the 2013 Protocol thereto and the EU implementing acts in the context of a preliminary ruling procedure requested by the British High Court. The national proceedings were brought by the voluntary organization Western Sahara Campaign UK, which sought to challenge certain British policies and practices implementing the aforementioned legal acts, as far as they pertained to goods originating in and fisheries policy related to Western Sahara. As in Front Polisario, the main issue was the application of these agreements to the territory of and products originating in Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but considered by Morocco to be an integral part of its sovereign territory (for background, see our Article on T-512/12 Front Polisario v Council).

Given that this is the first request for a preliminary reference concerning the validity of international agreements concluded by the EU and their acts of conclusion, it also raised some new procedural questions, especially concerning the Court’s jurisdiction. In this case, the Court readily accepted that it has jurisdiction to give preliminary rulings on the interpretation and validity of all EU acts, ‘without exception’. This is noteworthy in and of itself, as it firmly establishes the Court’s jurisdiction when it comes to reviewing the EU’s international agreements in light of international law, albeit indirectly in the context of ruling on the validity of the EU act approving the international agreement in question (Judgment paras 48-51). Such jurisdiction is in line with the Court’s recent case-law that provides for the Court’s comprehensive jurisdiction, especially in light of the Court’s finding that the Treaties have created a ‘complete system’ of judicial review entrusted to the Courts of the EU (Rosneft para 66). Continue reading →

From Conflicts-Rules to Field Preemption: Achmea and the Relationship between EU Law and International Investment Law and Arbitration

By Harm Schepel

Introduction

Investment Tribunals called upon to resolve intra-EU disputes are getting used to the European Commission showing up at their doorstep to try to convince them to decline jurisdiction. Though the range of arguments is wide and varied depending on the circumstances of the case and the underlying Investment Treaties, the overarching theme is simply that EU Law reigns supreme in relations between Member States and overrides all international law commitments that individual Member States- and the EU itself in the case of the Energy Charter Treaty- have entered into.  The Commission has occasionally met with success: in Electrabel, a long learned discussion on the relationship between EU Law and the ECT was concluded with the bombshell that EU law ‘would prevail over the ECT in case of any material inconsistency’  (para. 4.191). Other times, it is summarily dismissed. ‘Should it ever be determined that there existed an inconsistency between the ECT and EU Law’, observed the Tribunal in RREEF Infrastructure, ‘the unqualified obligation in public international law of any arbitration tribunal constituted under the ECT would be to apply the former. This would be the case even were this to be the source of possible detriment to EU law. EU law does not and cannot “trump” public international law.’[i]

The most interesting point about these wide divergences between different Tribunals on rather fundamental points of EU and international law is how little they seem to matter.  In both RREEF and Electrabel and numerous other intra-EU cases, the Tribunals disposed of the matter by pointing out that, in casu, there was no relevant material inconsistency, no conflict, no need to rule on matters of EU law, no incompatibility of obligations under different Treaties, and/or nothing that could not be solved by ‘harmonious interpretation.’ It might make sense to think of this Tribunal practice as devising conflicts-rules.

There are good reasons for the Court of Justice not to want to play this game. A case by case analysis of whether a particular award passes muster through national enforcement proceedings, or a Treaty-by-Treaty analysis of whether a particular dispute settlement or applicable law clause is compatible with EU law, is bound to be time consuming and labor-intensive, and will inevitably be unpredictable and lead to legal uncertainty.    Continue reading →

Neues aus dem Elfenbeinturm: March 2018

Conference “The Future of the EU and European Law”

Palacký University, Olomouc, 19-20 April 2018. Deadline for registration: 29 March 2018.

Conference “Law-Making in Multi-Level Settings – Federalism, Europe, and Beyond”

University of Antwerp, 20-21 September 2018. Deadline for abstract submissions: 9 April 2018.

Call for papers “European Junior Faculty Forum”

European University Institute, 12-13 July 2018. Deadline for paper submissions: 1 May 2018.

Conference “Brussels, We Have a Problem – Rethinking Justice Within the European Union”

University of Witten/Herdecke, 8-10 June 2018. No deadline for registration.

Summer School “Cinema Human Rights and Advocacy”

Venice, 27 August-5 September 2018. Deadline for registration: 20 June 2018.

Achmea – A Perspective from International (Investment) Law

By Pekka Niemelä

A week has passed since the European Court of Justice (ECJ) rendered the landmark Achmea judgment. A number of posts analyzing the judgment have already appeared in the legal blogosphere (see e.g. here, here, here and here). Much of this commentary has focused on describing the Court’s reasoning and on analyzing the judgment’s broader implications. Most commentators agree that there was nothing unexpected in the Court’s conclusion that the arbitration clauses in the less than two hundred intra-EU BITs have, as the Court put it, an ‘adverse effect on the autonomy of EU law’ (para. 59).

The judgment’s reception has also varied in accordance with the view one has of the underlying purposes of investment treaties – do they promote the international rule of law or narrow corporate interests at the expense of the public interest? Accordingly, those critical of investment treaties and arbitration have welcomed the judgment, whereas the proponents of investment treaties have argued that the judgment leads to less ‘rule of law within the EU’.[1] On a higher level of abstraction, the plausibility of the Court’s reasoning also depends on the view one has of the EU in general: is it an autonomous constitutional order based on the protection of fundamental rights and certain foundational values? Or should the EU demonstrate more openness towards other international law regimes, as it is just one such regime among others? Depending on the view one has over these two intertwined general questions, Achmea can either appear as a logical corollary of EU constitutionalism or as a breach of the EU’s commitment to the international rule of law.

What this blogpost strives to do is to take issue with the Court’s understanding that arbitral tribunals interpret and apply EU law in ways that pose a threat to its autonomy. The point is not to argue that the Court’s reasoning and conclusions are incorrect, but to shed light on the ways in which arbitral tribunals have actually ‘used’ EU law, and to show that the Court’s understanding (with which most commentators sympathize) that investment arbitration poses a threat to the autonomy of EU law is somewhat inflated. Continue reading →

Don’t Lead with Your Chin! If Member States continue with the ratification of CETA, they violate European Union law

By Christina Eckes

 After last week’s Achmea ruling of the Court of Justice (CJEU) Member States can no longer legally go ahead with ratifying CETA – the mixed Free Trade Agreement that the EU and its Member States agreed with Canada. Achmea casts serious doubts on the legality of CETA’s investment chapter, which allows investors from one Party to submit to an arbitral tribunal a claim that the other Party has breached an obligation under CETA. By simply going ahead with the ratification, they violate the principle of loyalty under European Union law.

On 6 March, the CJEU declared in its Achmea ruling that the investor-state-dispute-settlement (ISDS) mechanism in the bilateral investment treaty between the Netherlands and Slovakia (NL-SK-BIT) as incompatible with EU law. A request by Belgium is pending before the CJEU asking for clarification on the legality of the new Investor Court System in CETA (Opinion 1/17). Achmea is a clear indication that the CJEU in Opinion 1/17 is likely to find also the Investor Court System in CETA problematic for the autonomy of EU law.

No general obligation exists for Member States to halt national ratification of mixed agreements when their compatibility with EU is questioned before the CJEU. Yet, CETA is different. The clear indication of incompatibility in Achmea imposes an obligation on national Parliaments to halt the CETA ratification process and wait for Opinion 1/17. Continue reading →

Lounes, Naturalisation and Brexit

By Gareth Davies

Introduction

Many Europeans in the United Kingdom and British citizens on the continent are currently wondering whether they should adopt the nationality of their host state, in order to guarantee their residence rights after Brexit. One disadvantage of doing this is that they cease to be foreigners, people living in a state ‘other than that of which they are a national’ (Article 3, Citizenship Directive) and so lose all the specific rights that EU law grants to migrants in a host state, most notably those concerning family members. These migrants’ rights are largely found in the Citizenship Directive, and are the basis for the provisions on Citizens’ rights in the draft Brexit Withdrawal Treaty. Ceasing to be a foreigner thus creates legal risks, as well as advantages.

Lounes has now added an interesting twist to this situation. The essence of this judgment is that a migrant Union Citizen who naturalizes cannot be compared to a native citizen – their migrant history means that they should be treated differently, and continue to enjoy the rights they had as a migrant. It holds out the possibility of the best of both worlds for the potential Brexit victim. On the one hand, all the security that comes with possessing the nationality of their host state. On the other, all the privileges that come with being seen as a migrant in EU law. The draft Withdrawal Treaty, published on 28th February, seems to take this approach too. However, before the champagne can be uncorked we must wait for the final Treaty text, for it would only take small changes in the way that it defines those it protects to spoil the naturalization party. Continue reading →

Does Member State Withdrawal from the European Union Extinguish EU Citizenship? C/13/640244 / KG ZA 17-1327 of the Rechtbank Amsterdam (‘The Amsterdam Case’)

By Oliver Garner

Update (19/6/2018): On 19th June 2018 the Amsterdam Appeal Court decided not to refer the question of whether EU citizenship is automatically lost with Member State withdrawal to the Court of Justice of the European Union. The questions were declared ‘insufficiently concrete’ in light of the hypothetical nature of the complaint. It remains to be seen whether the legal dispute could re-surface if and when the issue of the loss of EU citizenship does become concrete when the United Kingdom’s withdrawal from the European Union is finalised. The judgment (in Dutch) can be found here, and a summary (in English) here.

Contents

Introduction: A New Route from Amsterdam to Luxembourg.

A Brief Chronology of the Relevant Facts and Sources for the Amsterdam Case.

A Summary of the Amsterdam District Court Decision.

Legal Analysis of the Questions Referred: The Arguments for and against Automatic extinction and a Potential Compromise.

Conclusion: The Ramifications of Emancipative Legal Constitutionalism.

Introduction: A New Route from Amsterdam to Luxembourg

Despite the United Kingdom’s impending withdrawal from the European Union, a direct Eurostar train route from London to Amsterdam will soon be established. This route will enable, amongst others, all of those holding the status and rights of EU citizenship to move ‘freely’ between the two metropolises. This class still includes nationals of the United Kingdom, and ostensibly will continue to do until that Member State’s withdrawal is concluded in accordance with Article 50 TEU. An incorporeal yet no less direct route has now also been established between Amsterdam and Luxembourg as a result of a preliminary reference by the Rechtbank Amsterdam (‘District Court’) to the European Court of Justice  (‘ECJ’)   under Article 267 TFEU. Such a judicial pathway may facilitate retention of the status and rights created by Article 9 TEU and Article 20 TFEU for the aforementioned nationals of the withdrawing state. Continue reading →

Neues aus dem Elfenbeinturm: February 2018

Call for submissions – European Papers

No deadline.

Conference “Looking to the Future and Beyond: New Approaches to ADR”

University of Leicester, 10 May 2018. Deadline for abstract submissions: 28 February 2018.

Dimensions and Identities Summer School “Dimensions of Human Rights”

University of Salzburg, 23-27 July 2018. Deadline for abstract submissions: 30 March 2018.

Colloquium “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment”

Max-Planck-Institute Luxembourg for International, European and Regulatory Procedural Law, 26 September 2018. Deadline for abstract submissions: 15 April 2018.

Conference “Le règlement des différends dans les accords de l’UE avec des pays tiers”

University of Fribourg, 2 May 2018. Deadline for registration: 18 April 2018.

Summer School: “Venice School of Human Rights”

EIUC Venice School, 9-16 June 2018. Deadline for registration: 23 April 2018.

Summer School “Recent Developments on Financial Crime, Corruption and Money Laundering: European and International Perspectives”

University of Thessaloniki, 4-12 July 2018. Deadline for applications: 30 April 2018.

Neues aus dem Elfenbeinturm: January 2018

Call for papers: Workshop “Information Sharing and European Agencies: Novel Frontiers”

European University Institute, 23 May 2018. Deadline for submissions: 15 February 2018.

Call for Papers: “Challenges to EU Law and Governance in the Member States”

European University Institute, 8 June 2018. Deadline for submissions: 18 February.

Call for papers: Special Issue “Revisiting WTO’s Role in Global Governance”

Trade, Law and Development. Deadline for submissions: 28 February 2018.

Call for Papers: PhD Colloquium “Regulating New Technologies in Uncertain Times”

Tilburg University, 14 June 2018. Deadline for submissions: 28 February 2018.

Call for Papers: “Geography and Legal Culture on the International Bench”

Leiden University, The Hague Campus, 17-18 May 2018. Deadline for submissions: 28 February 2018.

PNR Agreements between Fundamental Rights and National Security: Opinion 1/15

By Arianna Vedaschi and Chiara Graziani

On July 26, 2017, the European Court of Justice (ECJ) issued Opinion 1/15 (the Opinion of the Advocate General on this case had been discussed previously in this blog, part I and part II) pursuant to Article 218(11) TFEU on the draft agreement between Canada and the European Union (EU) dealing with the Transfer of Passenger Name Record (PNR) data from the EU to Canada. The draft agreement was referred to the ECJ by the European Parliament (EP) on January 30, 2015. The envisaged agreement would regulate the exchange and processing of PNR data – which reveals passengers’ personal information, itinerary, travel preferences and habits – between the EU and Canada. The adoption of the agreement is crucial because, according to Article 25 of Directive 95/46/EC as interpreted in the Schrems decision (commented here), the transfer of data to a third country (discussed here) is possible only if such country ensures an “adequate level of protection.” This standard can be testified by an “adequacy decision” of the European Commission or, alternatively, by international commitments in place between non-EU countries and the EU – as the one examined by the ECJ in this Opinion.

Not surprisingly, the leitmotiv of the Court’s Opinion is the challenging balance between liberty and security. Maintaining a realistic perspective, the Court considered mass surveillance tolerable at least in theory, because it is a necessary and useful tool for the prevention of terrorism. Yet, it insisted that there should be very strict rules as to the concrete implementation of such surveillance. For this reason, it found some provisions of the draft agreement incompatible with Articles 7 (privacy) and 8 (data protection), in conjunction with Article 52 (principle of proportionality) of the Charter of Fundamental Rights of the European Union (CFREU).

As a result, the agreement cannot be adopted in the current form and the EU institutions will have to renegotiate it with Canada. For sure, this renegotiation will prove to be challenging. Nevertheless, as the analysis below will show, the Luxembourg judges, by addressing particularly technical issues of the agreement, provided a detailed set of guidelines that, if respected, would ideally preserve fundamental rights – in this case, the right to privacy and to data protection – without undermining public security. Through a smooth and refined reasoning, the Court’s decision indeed suggests potential solutions to amend the draft agreement in a way that is compliant with the CFREU and, ultimately, the rule of law. Continue reading →