Green light or white flag? The European Commission’s endorsement of the Polish recovery plan and its implications for the rule of law crisis

Last week, the European Commission signalled that it would give green light to Poland’s recovery and resilience plan under the Next Generation EU program. On the one hand, this may have significant financial implications for Poland. The Commission’s approval is likely to lead to the unlocking of billions in support of the country’s economy revving up after turmoil caused by Covid-19. On the other hand, the Commission’s go-ahead equally marks an important development in relation to the rule of law crisis in Poland. It suggests that the abandoning of some of the most contested elements of judicial reforms is good enough for the Commission. In unsettling times, Berlaymont seems eager to lay its quarrel with Poland to rest.

At first sight, this may be extolled as a long-overdue amicable solution between Warsaw and Brussels. However, this would be too good to be true. In fact, as Jaraczewski argues, the Polish lawmakers’ conciliation is likely to be nothing but a feint. This blog post agrees with this impression. It suggests that the Polish ruling parties’ approach ties in neatly with a strategy of legalistic law-making that has marked the interaction of EU institutions and national lawmakers for years. The latter may often take pride in finding clever legal workarounds that accommodate requirements of Union law, without abandoning an illiberal policy altogether.Continue reading

Does monitoring your phone affect the essence of privacy?

On 11 May, the European Commission published its proposal for a regulation to combat child sexual abuse material (CSAM). The Commission managed to squeeze a host of controversial digital rights issues into one package: the blocking of websites, the obligatory monitoring of online content, and, the most novel one, a measure which opens the door to undermining encryption. Because encryption technologies protect communications confidentiality, one crucial question in the upcoming policy debate will be whether this latter measure, or its implementation, is compatible with the rights of privacy and data protection under the EU Charter of Fundamental Rights (the Charter). In this contribution, I explore one aspect of that question: is it possible to argue that this measure does not respect the essence of these rights? On the basis of a preliminary analysis, I conclude that this is certainly defensible and suggest further routes for exploration.Continue reading

Of the legal limits when checking the national geographical ones: Reflections on the Court of Justice’s judgment of 26 April on Austria’s internal border control

A. Introduction

For the past seven years, Union citizens have not only witnessed, but often first-hand physically experienced various Member State measures relating to their borders, including those which are internal Schengen borders as defined by Article 2 (1) of the Schengen Borders Code (SBC). Measures to better manage transit, border controls because of migration and even at times highly rigid entry bans due to the neighbouring region’s situation concerning COVID cases have led to a shift in the Union citizens’ “spatial experience”. The legality of some of these measures, such as a strict entry ban, is at least highly questionable. Measures in the area of traffic, such as prohibiting the evasion of traffic jams on the highway by passing through small neighbouring villages in high numbers, it was argued, was not problematic because the measures were subject to strict proportionality considerations.

To see these measures as mere more or less temporary nuisances overlooks their significance in highly both economically and socially integrated border regions. It is a discourse which makes emotions run high with unerring predictability, as the neighbourly feud between Bavaria and Tyrol exemplifies. These neighbouring regions continuously trade Union law arguments back and forth, openly contemplate infringement action and call on the Commission for legal support.

With its judgment of 26 April 2022 in joint cases NW v Landespolizeidirektion Steiermark and NW v Bezirkshauptmannschaft Leibnitz (C‑368/20 & C‑369/20), the Court of Justice has recently added an important and overdue clarification to the wider discourse of free movement, which is so heavily informed by Union law. This clarification concerns Article 25 (4) SBC, which provides for a limit to the duration of the reintroduction of internal border controls. Since many Member States have repeatedly prolonged their controls, the question arose whether these national measures were compatible with Union law. Pola Cebulak and Marta Morvillo have already presented an insightful first analysis of the judgment. My aim here is to expand on some of their points and to add aspects not yet mentioned. I would also like to point to the most recent developments of the last few weeks. My focus is on Austria here, but as the authors have rightly pointed out, given the similar, if not identical situation other Member States are in, some comments might be generalizable.

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How far can the extraterritorial reach of EU law go? A step further by the CJEU as a transnational actor

A decade after one of the most high-profile cases on the extraterritorial reach of EU law concerning the inclusion of global aviation emissions in the EU emissions trading system (‘ETS’) (Case C-366/10 Air Transport Association of America ‘ATAA’), the ECJ’s judgment in Case C-561/20 brought to light its lasting significance and its extension to a different aspect of air transport concerning passenger rights. It also reaffirmed the CJEU’s key role as a transnational actor when reviewing the geographic scope of secondary legislation. The CJEU has consistently extended EU regulation through two types of review: either by interpreting the scope of secondary legislation to cover activities taking place partly in third countries (e.g. Case C-424/13 Zuchtvieh-Export, Case C-592/14 European Federation for Cosmetic Ingredients, Case C-507/17 Google v CNIL) or by validating the legality of secondary legislation explicitly designed with a broad territorial scope (e.g. ATAA). Case C-561/20 combines both approaches, enabling the extraterritorial reach of EU law both through interpretation and legality review of Regulation (EC) No 261/2004 (‘Air Passenger Regulation’). Continue reading

The principle of proportionality and the EAW: uneasy bedfellows?

Although the European Arrest Warrant (“EAW”) between Member States should be employed as an ultima ratio, given the substantially coercive nature of the surrender procedure, the issuance of EAWs is increasingly commonplace in the European area. The plethora of EAWs issued by State authorities raises concern particularly in view of the necessity to respect the principle of proportionality.  

The principle of proportionality in the context of the European Arrest Warrant can be examined from two different perspectives: on the one hand, the so-called “prospective proportionality” when the EAW is issued in a disproportionate way to the extent that the surrender procedure is activated to prosecute minor offences; and, on the other hand,  “retrospective proportionality” when the penalties applied by the issuing State are perceived as disproportionate by the executing State (such terminology was first introduced by Haggenmuller, 2013). In this post, I will briefly deal with the former category of proportionality, the current issues, and the future perspectives. In the second part of the post, the Italian practice regarding the notion of “prospective proportionality” will be analysed, by referring to domestic legislation and recent case law. Continue reading

Standing of Non-Profit Associations or Consumer Associations to File Collective Actions without a Data-Subjects Mandate: Case C-319/20 Meta Platforms

On 28 April 2022, the Court of Justice gave a revolutionary judgment for non-profit associations or consumer associations by allowing standing to such associations to bring GDPR claims in the collective interest of individuals, irrespective of an actual infringement of the data subjects’ rights without being mandated by them. 

Facts of the case

Meta Platforms Ireland supplies services from the social network Facebook in Germany. On a space called “App-Zentrum” (Applications Space) on Facebook, free games from third parties are available. When accessing these games, the user sees a notice that the use of the application allows the gaming company to obtain certain personal data and authorises it to publish, on behalf of the user, his/her scores. This use means that the user accepts the general conditions of the application and its data protection policy without having adequate information about the data collected. 

The Federal Association of Consumer Centres and Consumer Associations Germany, a body with standing to act under German law (Article 4 of the Law on Injunctions), considered that these games breached legal requirements of obtaining valid user consent. It successfully filed for an injunction before the Berlin Regional Court on behalf of the data subjects whose rights had allegedly been violated. Meta Platforms appealed this decision first before the Higher Regional Court, Berlin, and then again before the Federal Court of Justice, Germany, which referred a preliminary question to the Court of Justice of the European Union. Continue reading

The Grand Chamber’s Judgment in Case C-117/20 bpost: Disimproving the Essence of ne bis in idem

In its judgment in case C-117/20 bpost SA v Autorité belge de la concurrence (hereinafter bpost), rendered on 22 march 2022, the Grand Chamber of the ECJ further developed its case law on the principle of ne bis in idem (Article 50 CFREU, also known as the right not to be punished twice). Bpost had been received two separate administrative penalties of punitive character for its a new tariff system for the distribution of addressed advertising material and administrative mail items. The Belgian Postal Regulator considered the new tariffs to discriminate between consolidators and direct clients. According to the Belgian Competition Authority, the same also constituted an abuse of a dominant market position. The question rose whether the imposition of two fines violated the principle of ne bis in idem.

In addressing that question, the ECJ continues struggle to define the essence of ne bis in idem. The Court had previously implied a convincing and clear definition of that essence in case C-129/14 PPU Spasic: An individual must never actually be sanctioned twice for the same act. This definition was subsequently narrowed down in case C-524/15 Menci, where the Court opened the door to the actual imposition of two sanctions, provided it occurs ‘only under conditions which are exhaustively defined’. The definition in Menci is diametrically opposed to the very wording and idea of ne bis in idem (literally ‘not twice for the same’) and has drawn considerable critique from AG Bobek in his Opinion in bpost. The Court did not address this critique in bpost, and instead disimproved the essence of ne bis in idem further: The duplication of sanctions will not violate the essence if it is provided for under different sets of legislation.  

We will begin with a brief note on the concept of essence in EU fundamental rights law in order to contextualise bpost. Next, it examines the Court’s definition of the essence of ne bis in idem in the case law leading up to bpost and AG Bobek’s critique thereof, before evaluating the Court’s latest definition. The contribution concludes with discussion on what bpost reveals about the Court’s approach to defining the essence of fundamental rights more broadly. Continue reading

Entrenching Emergency Soft Law

On the 23rd of March 2022 the European Commission adopted another Temporary Crisis Framework for State aid, this time in the context of Russia’s invasion of Ukraine (the Ukraine TF). The framework is meant to mitigate the economic impact of the war and EU sanctions by supporting severely affected businesses. This practice is not isolated, with the 2008 Temporary Framework issued in response of the financial crisis (the Financial Crisis TF), and the 2020 Temporary Framework issued in the context of the coronavirus outbreak (the Coronavirus TF), allowing already for trillions of Euros to be paid by the Member States to salvage their economies. These ‘frameworks’ belong to the loose category of ‘soft law’, as they have no legally binding force but may produce legal and practical effects. In areas of exclusive EU competence, such as State aid, such effects are far reaching, with research showing a general trend of compliance from national courts and administrations. 

Yet, soft law, and especially emergency soft law, have feeble legitimacy credentials, whilst regulating matters of high political, social, or economic salience. Through its Ukraine TF, the Commission sets the criteria according to which public money should be spent to ease the enormous pressure of high energy prices or the spill over effects of economic sanctions. Even though it pertains to the security of energy supply, environmental protection, and geopolitical concerns, the Ukraine TF was not issued following public consultations (unlike ‘regular’ State aid soft law), and the discussions that the Commission had with the Member States on the topic were not published. The Ukraine TF was published only two years after the Coronavirus TF, raising the concern that such practices, of issuing temporary soft law, are becoming entrenched, further endangering the rule of law in the EU.Continue reading