EU law protection from discrimination extends to self-employed workers, confirmed the CJEU in a landmark judgment with LGBT+ rights in the background

Blogpost 9/2023

On 12 January 2023, the Second Chamber of the CJEU delivered its decision in Case C-356/21 J.K. v TP S.A. which represents an important contribution to EU anti-discrimination law. Having examined the Framework Directive 2000/78, the Court has confirmed that the prohibition of discrimination on the grounds of sexual orientation applies not only to access to employment, but also to self-employment, provided there is a stable relationship with the client. This case also touches upon the broader issue of the rights of self-employed persons which lacks clarity at the EU level.

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Exercising the right to access personal data in an interconnected online world – Are we really closer to finding out who the recipients of our data are?

Blogpost 8/2023

On 12th of January, the European Court of Justice (ECJ) ruled that individuals have the right to be provided with the identities of those who receive and process their personal data.

The right to data protection outlined in Article 8 of the EU Charter of Fundamental Rights aims to protect individuals whenever their personal data are processed. As such, the General Data Protection Regulation (GDPR) provides enforceable rights to individuals, as data subjects whose personal data are processed, to help counter violations thereof and ensure that data protection rules are effective. At first sight, this judgement appears to be a clear win for individuals: controllers need to reveal the identities of those with whom they share personal data, which should help individuals better assess if their data are lawfully processed, exercise their rights as data subjects, and seek remedies. This should also help ensure that data processing is more transparent. However, to find out the identities of recipients, individuals have to make the effort to exercise their rights and process the information, if received. Additionally, the Court outlined two exceptions to the obligation, whereby it is sufficient to inform individuals of the categories of recipients where a) it is impossible to disclose the identities of recipients; or b) the controller can prove that the request is unfounded or excessive within the meaning of Article 12(5)(b) GDPR. In the online environment in particular, where personal data provided to one company might be shared with a host of others without our knowledge, controllers might be eager to argue that one of the exceptions applies. As a result, the question remains: are we really closer to finding out who the recipients of our personal data are?

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Human rights and ineffective public duties: the Grand Chamber judgment in JP v. Ministre de la Transition écologique

Blogpost 7/2023

In JP v. Ministre de la Transition écologique, the CJEU has been recently called upon to rule on the possibility for an individual to seek compensation for the health issues caused by poor air quality under Directive 2008/50/EC (hereinafter ‘the Air Quality Directive’).

 

Factual background

In the case at stake, JP (the plaintiff) sought compensation before the administrative tribunal of Cergy-Pontoise (France). Before the domestic court, the applicant claimed, first, the annulment of the decision by which the local public authority refused to adopt the measures deemed necessary to help solve the air quality-related health issues of JP; second, the applicant also sought compensation (for the amount of €21 million) for the damage to his health caused by the poor air quality of the area since 2003. The national court of first instance dismissed the case, while the Cour administrative d’appel de Versailles (the appellate court) suspended the proceedings and asked the CJEU whether Articles 13 and 23 of the Air Quality Directive can be interpreted as conferring upon individuals the right to compensation in case of breaches of the obligations stemming from the same Directive.

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Cybersecurity for Europe without a legal basis?

Blogpost 6/2023

As the European Commission is committed to ensure the digital transformation of Europe by 2030, cybersecurity policy is taking a special place. As part of this effort, recently, the Network and Information Security (NIS2), Digital Operational Resilience Act (DORA), the Resilience of Critical Entities (RCE) have entered in force and the Cyber Resilience Act (CRA) has been proposed. However, in consideration of the conferred nature of the supranational powers, it is worth discussing to what extent the EU has the mandate to act in this field without a proper cybersecurity competence being stated in the Treaties. The new cybersecurity legislation has been proposed and approved by relying on the ‘internal market harmonisation’ legal basis, i.e., Art. 114 TFEU. However, in consideration of the proactive approach the Commission has taken in this field and the complex nature of cybersecurity policy, I argue that, although the legitimacy of such legislation is hard to be disputed, the attribution of a specific competence to be conferred to the EU, even by amending the Treaties, would clarify – and better justify – the prominent role that the EU has taken in this area.

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Case T-158/21 Minority SafePack: No hope for minority rights in EU law?

Blogpost 5/2023

The European Union (EU) has a somewhat ambivalent relationship with minority rights. According to Article 2 of the Treaty on European Union (TEU), respect for ‘the rights of persons belonging to minorities’ is among the EU’s founding values. Article 3(3) of that Treaty also provides that the Union ‘shall respect its rich cultural and linguistic diversity’, as affirmed in Article 22 of the Charter of Fundamental Rights. More generally, the EU famously claims to be ‘united in diversity’. But beyond these broad statements of principle, EU law offers little in the way of concrete, targeted minority rights guarantees.

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Not just another Islamic headscarf case: LF v SCRL and the CJEU’s missed opportunity to inch closer to acknowledging intersectionality

Blogpost 4/2023

On 13 October 2022, the CJEU (hereinafter: the Court) issued a judgment on religious discrimination in employment. In Case C-344/20 (LF v SCRL), the Court held that neutrality provisions prohibiting workers from manifesting their religious or philosophical beliefs do not constitute direct discrimination, provided that they are applied in a general and undifferentiated way.

This ruling is not an anomaly in the Court’s corpus of equality cases concerning Islamic headscarves. However, its significance lies in the Court’s responses to the other questions referred by the French-speaking Brussels Labour Court in Belgium. The referred questions challenged the Court to reassess three elements: its delineation between direct and indirect discrimination, its delineation of comparators in religious discrimination cases, and the acknowledgement of intersectional religious and gender discrimination. Intersectional discrimination describes synergistic disadvantage on the basis of two or more discrimination grounds, resulting in a unique form of discrimination. The aforementioned three elements are interconnected and impact the Court’s overall stance towards intersectionality. By not engaging with these three elements thoroughly, and most notably by not engaging in intersectional analysis of the alluded religious and gender discrimination, it forewent an opportunity to inch closer to acknowledging intersectionality. This is notable, particularly as AG Medina’s Opinion to the case delves into an extensive intersectional analysis.Continue reading

Completing the Capital Markets Union: The Commission’s Proposal for a Directive Harmonising Certain Aspects of Insolvency Law

Blogpost 3/2023

On 7th December 2022, the European Commission proposed a Directive for the harmonisation of certain aspects of insolvency law. With the objective to foster financial and economic integration in the European Union, the proposal is part of the Commission´s priority to advance the Capital Markets Union (CMU). 

While the free flow of capital is one of the fundamental freedoms recognised in the Treaty on the Functioning of the European Union (TFEU), the completion of the CMU is a long and ongoing process that requires legislative measures to be adopted on a step-by-step basis. Following a first action plan in 2015 and based on a report of a high-level forum on the CMU, a second action plan was adopted by the Commission in 2020. This plan sets out sixteen key measure necessary for the completion of a CMU, which target more accessible financing for European companies, aim to enhance the level of retail investor´s participation in capital markets and to integrate national capital markets into a genuine single market (COM(2020) 590 final, 6-7).Continue reading

‘Qatargate’ exposes a long-denounced inadequacy of the ethics framework for members of the EU institutions

Blogpost 2/2023

The President of the European Parliament, Roberta Metsola, declared that ‘European democracy is under attack’ and announced the launch of a reform process following the arrests of four people on 9 December 2022, as a result of an investigation into suspicions of corruption to the benefit of Qatar. Among them, the most prominent name is Eva Kaili, at the time Vice-President of the European Parliament, who has as a result been stripped of her title. Former Member of the European Parliament (MEP) Pier Antonio Panzeri is also involved. The problem is that, considering the long-denounced shortcomings of the current ethics frameworks applicable to the members of EU institutions, it was just a matter of time before such a scandal occurred: action should have been taken earlier.

The goal of this post is to examine the most evident shortcomings of the current ethics frameworks for members and staff of the EU institutions involved in the legislative procedures, namely, the European Commission, the European Parliament and the Council of the European Union (Council): the excessive laxity of some of the provisions, the insufficient monitoring of the compliance with the rules and their weak enforcement failed to deter this scandal from happening.Continue reading

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