New layout for the European Law Blog

Welcome to the new layout for the blog.  Due to technical difficulties with the old software, it was time for a change. The new layout has been funded by the University of Liege (Belgium), the University of Fribourg (Switzerland), and the University of Amsterdam (the Netherlands). We are grateful for their support and we hope you enjoy the new site. 

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Whatever Happened to the Irish Backstop?

By Nikos Skoutaris

The Brexit negotiations have been haunted by an almost unsolvable riddle.  How could the UK and the EU keep the Irish border free of any physical infrastructure without jeopardising the integrity of the single market?

That riddle has two possible solutions. The UK as a whole could opt for a relationship with the EU that would be much closer than the one described in its red lines. Since Theresa May’s Lancaster House speech, such red lines entailed that the UK would not be part of the single market and the customs union after Brexit takes place. Alternatively, the UK could accept that Northern Ireland would have a closer relationship with the European Union than the rest of the country.Continue reading

21 Thoughts and Questions about the UK-US CLOUD Act Agreement: (and an Explanation of How it Works – with Charts)

By Theodore Christakis [1]

I. Introduction: The Need to Unpack the Long-Awaited UK-US Data Sharing Agreement

After four years of negotiations surrounded by secrecy, the United Kingdom and the United States finally released on October 7, 2019, the text of their Data-sharing agreement aiming to facilitate the cross-border access to electronic data for the purpose of countering serious crime. This long-awaited agreement is the first of the executive agreements envisioned by the CLOUD Act. It is, as rightly said, “critically important providing not just a window into the US and UK’s approach but also presumably setting out a basic blueprint for other agreements that may follow”. Indeed, the US and the European Union have recently begun negotiations in order to conclude an agreement in this field, while the US and Australia also announced having started similar negotiations.Continue reading

Could the European Council impose a ‘qualitative condition’ to hold a second referendum or General Election on a new Brexit extension?

By Oliver Garner

Introduction

The EU (Withdrawal) (No.2) Act 2019 (‘The Extension Act’) was passed in September 2019 before the infamous unlawful prorogation of the UK Parliament. The Act obliges the Prime Minister to request a further extension of the Article 50 period to 31 January 2020 in the event that no deal has been agreed, and Parliament has not agreed to no deal, by 19 October 2019. The ambiguity over whether the Prime Minister will comply with this legislation has raised concerns over the government’s commitment to the rule of law. On 4 October 2019, however, government submissions to the Scottish Court of Session suggested that the Prime Minister will indeed comply with the law. If the government’s new proposals for the Irish backstop do not lead to a deal, therefore, it seems that the legal issue of extension will transfer to the European level at the next European Council meeting.Continue reading

Neues aus dem Elfenbeinturm: October 2019

Call for Chapters: Personal Data Protection and Legal Developments in the European Union

Deadline for proposal submissions: 18 October 2019.

Conference “Judges in Utopia: Civil Courts as European Courts”

Amsterdam, 7-8 November 2019. Deadline for (free) registration: 18 October 2019.

Conference “Socially Responsible Foreign Investment under International Law”

Catholic University of Portugal, 24-25 October 2019. (Free) registration necessary.

Workshop “Gender Based Approaches to the Law and Juris Dictio in Europe”

University of Pisa, 19-20 June 2020. Deadline for abstract submissions: 15 January 2020.

Planet49 CJEU Judgment brings some ‘Cookie Consent’ Certainty to Planet Online Tracking

By Gabriela Zanfir-Fortuna

This blog was first published on pdpEcho and is reproduced here with the kind permission of the editor: https://pdpecho.com/2019/10/03/planet49-cjeu-judgment-brings-some-cookie-consent-certainty-to-planet-online-tracking/

Last week, the Court of Justice of the European Union published its long-awaited judgment in the Planet49 case, referred by a German Court in proceedings initiated by a non-governmental consumer protection organization representing the participants to an online lottery. It dealt with questions which should have been clarified long time ago, after Article 5(3) was introduced in Directive 2002/58 (the ‘ePrivacy Directive’) by an amendment from 2009, with Member States transposing and then applying its requirements anachronistically:

  • Is obtaining consent through a pre-ticked box valid when placing cookies on website users’ devices?
  • Must the notice given to the user when obtaining consent include the duration of the operation of the cookies being placed and whether or not third parties may have access to those cookies?
  • Does it matter for the application of the ePrivacy rules whether the data accessed through the cookies being placed is personal or non-personal?

The Court answered all of the above, while at the same time signaling to Member States that a disparate approach in transposing and implementing the ePrivacy Directive is not consistent with EU law, and setting clear guidance on what ‘specific’, ‘unambiguous’ and ‘informed’ consent means.Continue reading

Case C-93/18 Bajratari – Unlawful Employment and the Right to Free Movement

By Maria Haag

On 2 October 2019, the CJEU delivered an important decision, which clarifies the ‘sufficient resources’ condition of Article 7(1)(b) Directive 2004/38 and simultaneously reinforces the right to free movement of Union citizens.

The case concerned the right of a third-country national mother of two minor Union citizens to reside in Northern Ireland in her capacity as their primary carer. The UK authorities had found that the mother could not claim a derived right of residence as the children did not fulfil the requirements set out in Article 7(1)(b) of Directive 2004/38. This provision sets out two conditions for the Union citizen’s right of residence in a host Member State for a period longer than three months: having (i) sufficient resources for themselves and their family members not to become a burden on the host state’s social assistance system, and (ii) comprehensive sickness insurance cover.

Specifically, in this case, the UK authorities argued that the minors could not prove compliance with the requirement for sufficient resources. While their father did place resources at their disposal, the UK authorities argued that such resources could not be taken into account for the purposes of Article 7(1)(b), as they had derived from employment carried out unlawfully after the expiry of his residence card and work permit.Continue reading

Fashion-ID: Introducing a phase-oriented approach to data protection?

By René Mahieu and Joris van Hoboken

Introduction

Fashion ID revolves around a German consumer protection organization, Verbraucherzentrale NRW (a public service organization), which filed a lawsuit against Fashion ID, an online fashion shop, about the placement of a Facebook “Like” button on the shop’s website. The inclusion of the like-button on Fashion ID’s website results in the transmission of personal data to Facebook’s servers when a visitor enters the website. This happens (i.) without the visitor being aware of that, (ii.) regardless of whether the visitor is a member of Facebook, and (iii.) regardless of whether the visitor actually clicks the like-button. According to the Verbraucherzentrale, the website operator has not provided information, nor collected consent for this processing of personal data, in accordance with its obligation under the Data Protection Directive (DPD). Continue reading

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