Category: Fundamental rights

The adoption of the European Pillar of Social Rights (‘the Pillar’) in 2017 and the 20-year anniversary of the entry into force of the Treaty of Amsterdam in 2019 provide an auspicious moment for not only take stock of accomplishments in the field of EU equality law and critically reflect on the past, but also to look forward. The Treaty of Amsterdam expanded the legal base (current Article 19 TFEU) for adopting EU legislation to six new anti-discrimination grounds (race or ethnic origin, religion or belief, disability, age and sexual orientation) and the recent adoption of the Pillar suggests that EU equality law and policy could now be at a pivotal point. In this brief blog post, we reflect on what, in our view, is one of the key current problems of EU equality law, namely, its (in)coherence at different levels (see Figure 1), and whether the Pillar carries the potential to -at least partially- address this issue. Continue reading →

February 28, 2019

Finding Comfort between a Rock and a Hard Place Advocate General Szpunar on striking the balance in copyright law

By Justin Jütte

Opinions in Funke Medien v Germany (Case-469/17), Pelham v Hütter (Case C-476/17), and Spiegel Online v Volker Beck (Case C-516/17)

In three Opinions that address the balance between copyright as a fundamental right and the right to freedom of expression, Advocate General Maciej Szpunar suggests that external challenges to exclusive rights under copyright law should be limited to extreme cases. In his view, the balance between different fundamental rights in copyright must be struck by the legislature in order to avoid undermining the efforts of EU harmonization.

Background

At a time where European copyright reform is hotly debated and the policy process is at a breaking point that might result in highly unsatisfactory rules or a persistent standstill in the development of EU copyright law (a brief summary of the current status can be found here., Advocate General (AG) Szpunar has been asked to deliver opinions in three preliminary references. All cases have been referred to the Court of Justice of the European Union (CJEU) by the German Bundesgerichtshof (BGH), the Federal Supreme Court. All three references contain similar and even partly identical questions. The essence of the preliminary references lies in the question how copyright rules should strike the balance between the interests of the right holders and users of works that are protected by copyright.

Copyright grants the author of a work the exclusive right to authorise or prohibit a number of protected acts. Such acts include, most importantly, to make reproductions of the work and to make the work available to the public (in physical and intangible form). An overly broad application of these rights could be used to completely control the use of the work, which is why copyright law foresees exceptions and limitations to the exclusive rights for certain purposes. For example, works protected by copyright, or at least parts thereof, can be used for the purposes of quotation and news reporting. At EU level, these rights and exceptions are mainly harmonized by the Information Society Directive (Directive 2001/29/EC, also ‘InfoSoc Directive’). Article 5 of the InfoSoc Directive contains one exception which Member States (MS) are obliged to implement into their national laws and 20 optional exceptions which MS are at liberty to implement. As a general rule, MS are not allowed to maintain in their copyright laws exceptions or limitations that are not contained in Article 5 (special exceptions exists for certain types of works, such as computer programs in Article 5 of Directive 2009/24/EC and original databases in Article 6 of Directive 96/9/EC); recital 32 of the Directive states that the list in Article 5 is exhaustive. There also exist so-called related rights, or neighbouring rights, which do not protect the author, but rather individuals who create, for example, sound recordings. For instance, the InfoSoc Directive and the Directive on rental and lending rights and on certain rights related to copyright in the field of intellectual property (Directive 2006/115/EC) grant producers of sound recordings similar rights to those enjoyed by authors.

This year the InfoSoc Directive turns 18, and although technology and society and the way we interact with works protected by copyright have changed, the elementary rules of copyright have remained unchanged. The longer Article 5 matured the less palatable it became for those who longed for more flexibility in the EU copyright rules. Technological developments, the Internet, social media and other modern phenomena made the list seem outdated. Exceptions and limitations struggled to accommodate new business models and the application of new technologies that implied the reproduction, even if only for purely functional purposes, of works protected by copyright. European scholars looked with moderate envy to the US where the US fair use doctrine constitutes a flexible moderating norm that can balance the interests of right holders and users on a case-by-case basis.

Many also turned to fundamental rights as a last resort to force open the exhaustive list of Article 5. The right to freedom of expression, in particular, was used as an argument to suggest that exceptions to the exclusive rights must exist beyond the limited list of copyright exceptions of the InfoSoc Directive.

This post does not discuss in detail the analyses of AG Szpunar that pertain exclusively to the interpretation of exclusive rights and exceptions and limitations. They have already been discussed here for Pelham and here for Funke Medien and here and here for Spiegel Online. Instead, this contribution focuses on the balance the Advocate Generals strikes between the right to freedom of expression and the right to property within copyright law.

Continue reading →

February 21, 2019

European Data Protection and Freedom of Expression After Buivids: An Increasingly Significant Tension

By David Erdos

On 14 February the Court of Justice of the EU (CJEU) handed down its decision in Buivids, a case which pitted an amateur individual online publisher against the Latvian Data Protection Authority (DPA). This important case raises fundamental questions concerning the scope of European data protection, the ambit of the personal/household exemption, the legal definition of journalism and the role of data protection as regards to this and also related academic, artistic and literary expression. The Court’s answers to these questions highlight the close and tense interface between European data protection and freedom of expression. At the same time, they provide only relatively limited insight as to how the serious tension between data protection, special expression and freedom of expression more broadly should be resolved. What they do suggest, however, is that not only national legislators but also courts and regulators have active and important roles toplay within this space. The full implications of this, as well as further guidance on how to balance data protection and special expression, should be provided in the forthcoming case of Stunt which will require the Court to consider whether national courts should disapply the ban on pre-publication injunctions against special expression processing which is set out in UK data protection legislation. In addition, Grand Chamber CJEU judgments on internet search engines and data protection are awaited both in relation to sensitive data and the geographical reach of any remedy here. In sum, slowly but surely, an albeit messy corpus of European jurisprudence on data protection and freedom of expression is in the process of gestation. Continue reading →

February 18, 2019

Neues aus dem Elfenbeinturm: February 2019

Radboud Economic Law Conference “New Directions in Competition Law Enforcement”

Radboud University, 24 May 2019. Deadline for abstract submissions: 22 February 2019.

Doctoral Workshop “Bilateralism versus Multilateralism”

University of Geneva, 19-20 September 2019. Deadline for abstract submissions: 15 March 2019.

Summer School “Human Rights in Theory and Practice”

University of Leipzig, 1-7 September 2019. Deadline for early bird registration: 31 March 2019.

American Society of Comparative Law Annual Meeting “Comparative Law and International Dispute Resolution Processes”

University of Missouri, 17-19 October 2019. Deadline for abstract submissions: 20 May 2019.

February 7, 2019

A Parallel Universe: Advocate General Bot in Opinion 1/17

By Harm Schepel

Introduction

All is clear, then: CETA’s Investment Chapter is perfectly compatible with EU Law. According to Advocate General Bot, the agreement is wholly separate from the normative (as opposed to the factual) universe of EU law, and merely protects readily identifiable ‘foreigners’ investing in the EU in the same way as it protects readily identifiable ‘European’ investors in foreign lands. From what we know of the hearing, the Advocate General provides not much more than a useful summary of the talking points offered by the Council, the Commission and the vast majority of the 12 intervening Member States, remarkably united in a bid to save the EU’s new external trade and investment policy. Clearly, the pressure on the Court to follow suit will be enormous. And yet. It is true, CETA builds strong fences to make good neighbors. But let spring be the mischief in me: CETA cannot wall out what EU Law walls in.[i]

Continue reading →

February 6, 2019

AG Bot in Opinion 1/17. The autonomy of the EU legal order v. the reasons why the CETA ICS might be needed

By Szilárd Gáspár-Szilágyi

Background

The EU’s exercise of its post-Lisbon competences over foreign direct investment (FDI) has been anything but smooth. In Opinion 2/15 the CJEU clarified the EU and Member State competences over the EU’s new generation free trade and investment agreements, resulting in the splitting of the EU‑Singapore agreement into a separate trade and investment agreement. Then, in Achmea the Court found investor-state arbitration (ITA) clauses under intra-EU BITs to be incompatible with EU law, which will result in the termination of almost 200 intra-EU BITs and the non-enforcement of ITA awards rendered under them within the EU. Now, everyone is anxiously awaiting the outcome of Opinion 1/17 – requested by Belgium under the insistencies of Wallonia – and whether the Investment Court System (ICS) under CETA is compatible with EU law. This opinion will not only affect the entry into force and conclusion of the trade and investment agreements with Canada, Singapore, Vietnam and Mexico, but it will have broader implications for the multilateral ISDS reform process and the EU’s investment policy.

Therefore, Advocate General Bot’s extensive opinion delivered on 29 January 2019 (first commentaries here and here) in which it found the CETA ICS to be compatible with EU law deserves scrutiny. I will only focus on the AG’s arguments concerning the exclusive jurisdiction of the Court of Justice over the definitive interpretation of EU Law. In a separate post, Harm Schepel will focus on the AG’s arguments on non‑discrimination. Continue reading →

December 19, 2018

Part IV Mini-Symposium on EU Citizenship in the Shadow of Brexit: (EU Withdrawal) Texts, Pretexts and Epignosis in the United Kingdom

By Dora Kostakopoulou

In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading →

December 19, 2018

Part III Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Right of UK nationals to vote in European Parliament elections in the EU-27

By Oliver Garner

Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading →

December 19, 2018

Part II Mini-Symposium on EU Citizenship in the Shadow of Brexit: Political participation by EU citizens in Scotland after Brexit

By Mark Lazarowicz

Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading →

December 19, 2018

Part I Mini-Symposium on EU Citizenship in the Shadow of Brexit: The Brexit effect – European Parliamentary Elections in the UK

By Ruvi Ziegler

The UK is scheduled to leave the EU on 30^thMarch 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading →

December 18, 2018

Introduction to the Mini-Symposium: EU Citizenship in the Shadow of Brexit

By Oliver Garner

On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightman judgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements. Continue reading →

December 5, 2018

The Pilatus Bank scandal: time to reconsider banking supervision, anti-money laundering and whistle-blower’s protection in the EU

By Dimitrios Kafteranis

On Monday 23 April 2018, the European Commission released its proposal on the protection of persons reporting on breaches of Union law. The proposal of the European Commission comes after pressure of the European Parliament and other organisations calling for a coherent protection of whistle-blowers at the EU level. This pressure results partially from different scandals that were revealed by whistle-blowers such as Panama Papers or the case of the Pilatus Bank in Malta. The Commission’s proposal aims to set common minimum standards to protect whistle-blowers when they report breaches of EU law. It has several legal bases and covers a wide-range of EU areas such as consumer protection, financial services and the protection of privacy and data. The reporting procedure follows the ‘classic’ three-tier model for whistle-blowing, that is reporting firstly internally, then to the designated authorities and as a last solution to the public. The text is innovative in the sense that it proposes a wide definition of the whistle-blower ranging from trainees to ex-employees. The European Commission regards whistle-blowing as an enforcement tool for the prevention, detection and prosecution of illegalities affecting EU law.

For the future, it is compelling to pursue the negotiations between the two co-legislators of the EU (European Parliament and Council) in order to follow the challenges on the question of whistle-blowing at the national and European level. These negotiations could take many years. This post aims to introduce the reader to the proposal for a Directive on the protection of whistle-blowers by cross-referring to the case of the Pilatus Bank where a journalist and a whistle-blower are involved. The purpose is to highlight that there is a need for an EU Directive on the protection of whistle-blowers and to demonstrate that the proposed EU Directive would have better protected the Pilatus Bank whistle-blower. Furthermore, this contribution will demonstrate the problematic nature of money laundering and banking supervision at the EU level. Following the creation of the Banking Union, the interconnectivity of banks is a fact and a problem in one country can create a domino effect to the others. For example, the Pilatus Bank scandal does not only concern Malta but the European banking system as a whole. Continue reading →

November 19, 2018

Joined cases C-569/16 and C-570/16 Bauer et al: (Most of) the Charter of Fundamental Rights is Horizontally Applicable

By Eleni Frantziou

The EU case law on the horizontal effect of fundamental rights is not the average lawyer’s go-to example of coherence, clarity, or adequate judicial reasoning. To give credit where credit is due, however, in a series of cases over the last year, the Court has significantly improved this state of affairs. The Grand Chamber’s judgment in Bauer et al is the most noteworthy affirmation of this change of direction so far. This post maps out what might now be safely described as the current position on the horizontal effect of fundamental rights in the European Union and attaches a threefold (mostly positive) meaning to the Bauer judgment. However, using Bauer as a springboard, it also raises two broader questions regarding the status of social rights and the non-horizontality of directives, which may require further refinement in future case-law. Continue reading →

November 7, 2018

Quod Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland

By Marco Antonio Simonelli

On 8 October, four new Judges and two Advocates General officially entered into office at the Court of Justice of the European Union (henceforth ‘the Court’). Just two days before, the U.S. Senate had confirmed the appointment of Brett Kavanaugh to the U.S. Supreme Court. Whilst the latter process had attracted the attention of media from all over the world, the appointment of the new European judges had barely made the news. This situation is reflected also in the academic world, which, surprisingly, never showed much interest in the Court’s appointment process.^[1]

However, this does not mean that the procedure set out at Articles 253-255 of the Treaty on the Functioning of the European Union (henceforth “TFEU”) is immune to criticism. Two aspects in particular appear capable to negatively affect the appearance of independence of the European Judges: the duration of the mandate – 6 years – and the lack of transparency of the whole process which is dominated by national governments. These flaws may be one of the reasons why the Court had elaborated a minimal definition of the concept of judicial independence; a definition that may need to be reshaped in order to tackle the judicial reform enacted by the Polish government.

The concerns related to the transparency of the procedure and the discretion of national executives have been partially addressed by the Lisbon Treaty, with the creation of the s.c. Article 255 Panel. This Panel, composed of senior members of national judiciaries, former members of the Court and one person chosen by the European Parliament, is charged with the task to confirm a candidate’s suitability to perform the duties of Judge or Advocate General. Notwithstanding the undoubtedly positive effects produced by the panel on the quality of candidates, serious concerns remain regarding the transparency of its work: the Council Decision 2010/124/EU establishing the operating rules of this Panel, provides that both the hearing of the candidate and the deliberations of the body shall take place in private. Hence, the introduction of Article 255 Panel has been effectively dubbed as a form of “progress by stealth”.

Continue reading →

October 12, 2018

The European Commission’s E-evidence Proposal: Toward an EU-wide Obligation for Service Providers to Cooperate with Law Enforcement?

By Vanessa Franssen

On 17 April 2018 the European Commission published its long awaited legislative proposal on e-evidence. This proposal – which actually consists of two strongly interconnected proposals, a Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters (‘Proposed Regulation’) and a Proposal for a directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings (‘Proposed Directive’) – is probably the first one in the field of criminal justice cooperation that the Council of the EU urged the Commission to put forward. Indeed, while the Member States are usually quite reluctant to give up sovereignty and to accept EU approximating rules in the field of criminal law, a number of Member States strongly pushed for a legislative intervention by the EU.

This is not entirely surprising: due to the increased use of all kinds of online services and information and communication technologies (ICTs), police and judicial authorities are confronted on a daily basis with the problem to collect electronic evidence, as the data they are looking for are often processed, transmitted and/or stored by foreign service providers, including big global technology companies such as Google, Facebook, Microsoft or Amazon. To compel a foreign person to cooperate in a criminal investigation is not obvious – the enforcement jurisdiction of police and judicial authorities is, in principle, limited to their own national territory.

This post will present the highlights of the double e-evidence proposal that is on the table and the first reactions to the proposals, at a moment where the institutional negotiations are picking up speed. Continue reading →

October 1, 2018

Reconsidering the blanket-data-retention-taboo, for human rights’ sake?

Belgian Constitutional Court offers CJEU chance to explain its puzzling Tele2 Sverige AB-decision

By Frank Verbruggen, Sofie Royer, and Helena Severijns

Compulsory retention, by ICT-providers, of all non-content user and traffic data, to ensure that that data will be available for subsequent use by law enforcement or intelligence, has been a controversial issue in the EU for several years now. On 19 July 2018 the Belgian Constitutional Court requested a preliminary ruling from the CJEU. Basically, it asks the EU Court to further clarify its earlier case law. The Belgian constitutional judges indicate that they find some aspects of the CJEU’s previous decisions puzzling and they also offer a new angle by explicitly linking the matter to the positive obligations of member states under the European Convention on Human Rights. The implied suggestion seems that the CJEU did not give those obligations enough weight when it found blanket data retention obligations disproportionate. Continue reading →

September 20, 2018

A FRAGMENTATION OF EU/ECHR LAW ON MASS SURVEILLANCE: INITIAL THOUGHTS ON THE BIG BROTHER WATCH JUDGMENT

By Theodore Christakis

Last week, the European Court of Human Rights (ECtHR) issued an important, highly anticipated judgment, condemning the United Kingdom for its mass surveillance program.

Following Edward Snowden’s revelations regarding the United States-United Kingdom intelligence surveillance and intelligence sharing programme, 16 organizations and individuals (including the NGO Big Brother Watch) filed an application against the United Kingdom before the ECtHR. The 212page-long judgment published on September 13, 2018 is rich and deals with a great variety of important issues. Several among them are directly linked to some major legal questions examined in the past by the Court of Justice of the European Union (CJEU) or currently pending before it – not to mention the ongoing debate about whether the EU-US data transfer agreement known as Privacy Shield provides an “adequate level of protection”. The objective of this piece is to provide some first thoughts focusing on the strategic place of this judgment in the European legal landscape. Continue reading →

August 27, 2018

Neues aus dem Elfenbeinturm: August 2018

Workshop “Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?”

University of Amsterdam, 27 February-1 March 2019. Deadline for abstract submissions: 15 September 2018.

2019 ESIL Research Forum “The rule of law in international and domestic contexts: synergies and challenges”

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

Conference “Global Politics and EU Free Trade Policy”

Brussels, 10-11 December 2018. Deadline for abstract submissions: 6 October 2018.

#TILT Young Academics Colloquium “What’s #Trending in International and EU Law?”

University of Verona, 23-24 May 2019. Deadline for abstract submissions: 15 October 2018.

Call for submissions: Trade, Law & Development

Deadline for submissions: 15 October 2018.

Nuremberg Forum 2018 “20th Anniversary of the Rome Statute: Law, Justice and Politics”

Nuremberg, 19-20 October 2018. Registration necessary.

July 24, 2018

European arrest warrant and judicial independence in Poland: where can mutual trust end? (Opinion of the AG in C-216/18 PPU L.M.)

By Sofia Mirandola

The case and questions referred

In these times when “strong headwinds” are blowing against the European culture of fundamental rights and the rule of law (see P. Pinto de Albuquerque), the principles of mutual recognition and mutual trust on which judicial cooperation in the EU is based have come under pressure. The CJEU and the ECtHR are increasingly called upon to address the phenomenon of “rule of law backsliding” and to strongly defend these common values.

The recent preliminary reference submitted by the High Court of Ireland in case C-216/18 L.M. fits into such trend. It concerns the possibility to refuse the execution of three European Arrest Warrants issued by Polish courts against an individual, L.M., on account of the potential violation of the right to a fair trial ensuing from the latest controversial reforms of the judiciary in Poland. According to the Commission’s reasoned proposal to activate for the first time in history the procedure of Art. 7 TEU, which recently found the endorsement of the European Parliament calling on the Council to take action swiftly, the said reforms resulted in a breach of the rule of law due to, essentially, a lack of sufficient guarantees of external independence of the judiciary at all levels. Even though the application of the Framework Decision on the EAW can be suspended only after a Council’s decision under Art. 7 (1) TEU has been adopted (Recital 10 of the Framework Decision on the EAW), it is nonetheless inevitable that such circumstances may – from the viewpoint of the person subject to an EAW issued by Poland – entail a serious risk of breach of the right to a fair trial. The CJEU now has thus the opportunity to clarify whether an alleged lack of judicial independence amounts to a breach of the right to a fair trial that calls for the refusal to execute an EAW, as an exception to the principle of mutual trust.

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Belgian Constitutional Court offers CJEU chance to explain its puzzling Tele2 Sverige AB-decision

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