Covid-19: A New Struggle over Privacy, Data Protection and Human Rights?

By Dr Elif Mendos Kuskonmaz, Portsmouth University and Professor Elspeth Guild, Queen Mary University of London

In 2017, BBC launched an app called ‘BBC Pandemic’ as part of a nation-wide experiment in the UK that collected data of volunteers who used the app to model how an infectious disease like flu would spread and affect people living in the UK. The app collected volunteers’ location data, user profiles, user encounters, from which researchers at the University of Cambridge and the London School of Hygiene and Tropical Medicine extracted data (age, gender, location patterns) and built a mathematical model addressing for example questions such as the fatality rate. A documentary about the experiment aired in 2018, showing the audience a glimpse of how data might be central to respond to the spread of infectious disease.

As the Covid-19 pandemic ravages the world, the value of data has come to the forefront of policies to contain the spread of the virus and allow healthcare providers and researchers to exchange data. Examples range from using mobile applications to track contacts of people who have tested positive or to allow app users to track their symptoms to accessing telecommunications and internet service provider data to monitor and control population movement. In this blog, we aim to give our tentative observations on the controversy surrounding the emergent need to respond pandemic and data protection rules.Continue reading

Why Article 50 TEU is not the solution to the EU’s rule of law crisis

Given the seriousness of Hungary and Poland’s ongoing contravention of core EU values, the inadequacy thus far of the EU’s political institutions’ response, as well as apparent shortcomings in the EU rule-of-law toolkit, one might argue that bold and imaginative solutions are required. In this spirit, Hillion writing for Verfassungsblog has argued that Article 50 TEU could be utilised effectively to expel Hungary and Poland from the EU. Hillion argues that both States’ continued flouting of the EU’s core values could be regarded as a notification of an intention to withdraw within the meaning of Article 50. While I agree with the sentiment underpinning Hillion’s argument, I do not see his argument as sustainable doctrinally or as a desirable solution. Scholtes has already written an excellent response to Hillion for Verfassungsblog, in which he characterises Hillion’s views as ‘legal fetishism’. I agree with Scholtes’ views and will not to traverse them. I argue that (1) Hillion’s argument is misconceived doctrinally, (2) even if it were accepted as legally possible for Article 50 to be used as he suggests, its use would encounter significant pragmatic obstacles, and (3) such a use of Article 50 would be counterproductive.Continue reading

Academic Freedom protected via the CJEU? – The Advocate’s General Opinion in Commission v Hungary (C-66/18)

Introduction

In a recent Opinion, Advocate General Juliane Kokott (AG) suggested that the Court of Justice of the European Union (CJEU) should strike down a Hungarian national legislation which limits the operations of foreign academic institutions in Hungary. While the Opinion is a strong affirmation of academic freedom in the European Union (EU), it also gives guidance on the applicability of the World Trade Organization (WTO) provisions of the General Agreement on Trade in Services agreement (GATS) in the EU legal order. The most striking statement of the Opinion is that the EU shall enforce public international law treaties, such as the GATS, towards Member States to uphold the Union’s intention to comply with concluded international treaties, insofar the Union has taken over the treaty obligations as a party to the treaty. This post will, first, outline the jurisdiction and the admissibility of the infringement proceeding, then, discuss the merits of the case, and conclude with some comments on the significance and the potential outcome of the proceedings. Continue reading

Alleviating Water Scarcity Across the EU: The Contribution of the European Union’s Proposal for a Regulation on Water Reuse in the Agricultural Sector

Introduction

The European Union (EU) is facing an overwhelming water shortage. One third of EU territory is already experiencing water stress, while the growing needs of populations and the impact of climate change (among other factors) will make the availability of water of sufficient quantity and quality even more of a challenge in Europe in the future. This will pose threats to agriculture, the environment, and drinking water (see here and here).

The EU legislator has realised this and has begun to take action, including a proposal for an EU-wide Regulation to stimulate water reuse in the Member States to alleviate water scarcity. The main idea is that treated waste water from other sectors can function as a reliable alternative water supply for agricultural irrigation. The legislative process started with the Commission proposal in May 2018. Latest developments include the provisional agreement of the Council and the European Parliament on 2 December 2019 and the acceptance of the agreement by the Committee of Permanent Representatives at its meeting on 18 December 2019. With that, the legislative trilogue has been completed, and the legislative process has entered the stage of the second reading. The Regulation is expected to be formally adopted in 2020.

The reuse of water is nothing novel; it is already allowed in various countries around Europe and has already been provided for in the Water Framework Directive and the Urban Waste Water Treatment Directive, which in fact already required treated waste water to be reused whenever appropriate. The essential ingredient missing in the framework of the European level were more specified conditions for the quality of the provided water, which have now been incorporated into this EU Regulation.

In this blog, we will describe and review the content of the current Regulation proposal. To sketch the broader picture, we will first set out the scope of the water scarcity issue, its causes and its expected consequences. Subsequently, the content of the Regulation provisions and the consequences for the various stakeholders will be explained, including directly applicable standards for the suppliers of the treated waste water and the introduction of a mandatory permit scheme in the Member States. We conclude by analysing the Regulation and raising a few potential concerns.Continue reading

Is it time for Europe to reassess internet intermediary liability in light of coronavirus misinformation?

Throughout the coronavirus pandemic, numerous false and misleading stories have thrived on digital platforms. Misleading rumours about imminent “lockdowns” and debunked claims of potential cures have led to a resurfacing of concerns about the highly efficient spread of both misinformation and disinformation online. In response, numerous social media platforms have taken steps to prevent the spread of COVID-19 misinformation. In addition, the European Commission has noted that “misinformation and disinformation in the health space are thriving, including on COVID-19,” and has urged citizens to refrain from sharing false and “unverified” content. While these are positive steps, the severity of the current crisis has highlighted that misinformation poses a threat to public health. For this reason, the current self-regulatory framework addressing this issue must be reassessed, in order to ensure compatibility with human rights, including the right to public health.Continue reading

A tale of two crises – Will COVID-19 force the UK Government to extend the transition period?

Understandably, Brexit is hardly top of the agenda at present. The devotion of all institutional energy required to combat COVID-19 places the UK-EU future relationship negotiations in a new political landscape. However, those negotiations have not gone away and the cliff edge of the end of the transition period on 31 December 2020 looms. Faced with the COVID-19 crisis, an extension to the transition period is the pragmatic solution offered by the Withdrawal Agreement and has been called for by the EPP Group in the European Parliament.

Whilst the EU would welcome an extension, the  UK Government remains adamantly against the idea, even making it unlawful. I argue that this is imprudent and reckless. As the clock continues to tick, I consider the salient issues of EU law in the Withdrawal Agreement and the pivotal role of the Joint Committee to explore a potential route to an extension of the transition period in these uncertain times.

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Coming to terms with the refugee relocation mechanism

After the Court of Justice rendered judgment on the matter, headlines were quick to announce that Poland, Hungary and Czech Republic broke Union law by disavowing the refugee relocation mechanism; one of the major policy responses to the so-called refugee crisis. The judgment of 2nd April 2020 (Joined Cases C‑715/17, C‑718/17 and C‑719/17), for which the three cases were joined, adds another chapter to a dispute that simmered for years, even after the relocation mechanism’s two year lifespan had expired. Against that background, Commission President Ursula Von der Leyen reportedly noted that the ruling ‘is referring to the past but it will give us guidance for the future.’ How did the Court solve the dispute? And which ramifications may the judgment yield for EU migration law?

This post intends to discuss these questions, focussing in particular on the canny yet vain invocation of Article 72 TFEU as a legal avenue to depart from binding Union law (I.) and the emphasis of the relocation mechanism’s administrative nature (II.). On the basis of these considerations, it will be argued that the judgment seeks salvation in administrations’ wide discretion as a politically sensible solution, albeit with legal repercussions (III.). Thus, the post takes the view that the judgment allows both the defendant Member States and the Commission to come to terms with the relocation mechanism. Yet, it raises unresolved legal questions, which may motivate follow-up litigations.Continue reading

EU law allows MS to provide for civil confiscation proceedings irrespective of a finding to a criminal offence

On 19 March 2020, the ECJ rendered its judgment in the case «AGRO IN 2001» (C-234/18). In essence, the Court was asked to interpret Directive 2014/42 on the freezing and confiscation of instrumentalities and proceeds of crime in the EU, and its compatibility with national legislation providing for civil law proceedings on asset confiscation that are not based on a previous conviction. The case gave the Court the opportunity to interpret for the first time, Directive 2014/42 and Framework Decision 2005/2012/JHA – both EU instruments intended to harmonise Member State rules on confiscation of criminal assets.Continue reading

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