ECJ confirms Validity of the Rule of Law Conditionality Regulation

On 16 February 2022, the ECJ delivered a highly important ruling on the rule of law conditionality regulation in the two cases of Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21). The judgement was eagerly awaited and received a lot of attention. The ECJ fully dismissed Hungary’s and Poland’s actions for annulment against the general regime of conditionality for the protection of the European Union (EU) budget provided by the Regulation (EU, Euratom) 2020/2092 (hereinafter: Regulation; as analysed here). The said Regulation allows the EU to cut funds awarded to Member States in case of an established violation of the rule of law by those States, if this violation endangers the EU budget. In its judgement, the ECJ held that the Regulation was adopted on an appropriate legal basis and is compatible with the procedure laid down in Article 7 TEU. Moreover, it is consistent with the limits of the EU’s competences and fully in line with the principle of legal certainty. As expected, the ECJ thus followed the Opinion of the Advocate General Manuel Campos Sánchez-Bordona of 2 December 2021 (C-156/21 and C-157/21, as analysed here). The legality of the Regulation is now definite, which provides the EU with a new tool to sanction violations of the rule of law by its Member States.

Background

For some time now, the EU has been confronted with violations of the rule of law by its Member States, especially by Hungary and Poland. These violations have also been confirmed in recent ECJ rulings (see inter alia C-824/18, A.B. and othersC-791/19, Commission v Poland (Disciplinary Chamber); C-564/19, IS). In Hungary, particularly the rights of refugees, the opposition of the current government, and the press are restricted. Poland is especially criticised for its judicial reform and the Disciplinary Chamber of the Supreme Court, which can waive the immunity of judges. The ECtHR also recently dealt with those issues: In a judgment of 3 February 2022 (ECtHR, application no. 1469/20, Case of Advance Pharma sp. z o.o v. Poland), the ECtHR found that the Polish Supreme Court did not meet the requirements of Article 6 ECHR (right to a fair trial). On 8 February 2022, the ECtHR asked Poland in an interim measure to ensure that no decision in respect of the immunity of a judge may be taken by the Disciplinary Chamber until the final determination of the complaints by the ECtHR (ECTHR, application no. 6904/22, Case Wróbel v Poland). Furthermore, in October 2021, the Polish Constitutional Court issued a highly criticised ruling declaring some provisions of the EU Treaty unconstitutional (Trybunał Konstytucyjny, K 3/21, as analysed here). This case law blatantly violates fundamental principles of EU law. Hungary and Poland are also subject to rule of law proceedings under Article 7 TEU for alleged disregard of fundamental EU values.

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Protecting Ukrainians fleeing to the EU … but for how long?

Two million people have already fled across the EU’s eastern border since the start of the Russian invasion of Ukraine and the numbers of refugees who continue to flee suggest that the total numbers could rise to multiple millions. It is already now the biggest refugee movement in Europe since the Second World War. EU Member States are committed under international and EU law to offer protection to people fleeing the conflict in Ukraine. This is not in doubt. Rather, the immediate issues are: (1) who benefits from the EU’s protection? (2) how is the burden of these large numbers of refugees shared? The EU’s swift response is the activation of a little-known, little-regarded and never-used law to provide those fleeing the war in Ukraine ‘temporary protection’. It is the right law at this time, but, shortly, the protection of refugees from Ukraine is likely to become a contested issue. These matters are considered in this blog post.

EU Temporary Protection – a résumé

The Temporary Protection Directive (TPD) was the first-ever EU harmonising measure adopted in the area of asylum law. The experiences of the Member States hosting Bosnians and to a lesser extent also Kosovans under temporary protection measures in 1990s following the break-up of Yugoslavia shaped this legislation. Since its adoption in 2001, the Common European Asylum System (CEAS) has evolved but temporary protection had largely fallen out of favour.

Temporary protection has its critics. It is considered by some a weak and precarious form of international protection, at best. Some have also, not without reason, accused states of relying on it to avoid commitments to international protection, notably under the 1951 Refugee Convention. However, some of this criticism has been at cross purposes. Temporary protection is indeed offered in some parts of the world as the only basis for protection of refugees and, in these states, it may be considered a weaker and precarious form of protection. Temporary protection in the EU has however evolved into primarily an emergency process to manage a mass influx. The point of it is to enable immediate protection to refugees en masse and to avoid overwhelming asylum systems through hundreds of thousands, maybe even millions of individual applications for protection.

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The first CJEU decision on domestic workers: the role of EU equality law in challenging unjustified exclusions from labour rights and social protections

1. Introduction

On 24 February 2022, the CJEU issued its first judgment on domestic workers. In case C-389/20, TGSS (Chômage des employés de maison), the CJEU held that the exclusion of this category of workers from access to social security benefits constitutes indirect discrimination on the ground of sex, since it affects almost exclusively women.

Domestic workers have long constituted an invisible and rather underexplored category of workers within labour law scholarship and policy-making, which has only recently gained some attention in the wake of the adoption of the historic ILO Domestic Workers Convention No. 189 in 2011. Whereas a part of the scholarship has noticed that EU equality law could be used to challenge the long-standing exclusions of domestic workers from national labour law and social security system (see, notably, the contribution of Vera Pavlou, and the work of Nuria Ramos-Martin, Ana Munoz-Ruiz & Niels Jansen in the context of the PSH-Quality project), the issue has never reached the Court of Justice up to now.

With a decision that will become a landmark for domestic workers’ rights in the EU, the Court confirms the untapped potential of EU law in promoting domestic workers’ full coverage under labour law and social security systems, which will have significant implications in the promotion of domestic workers’ rights across the Union.

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The Proposed EU Regulation on Political Advertising Has Good Intentions, But Too Wide a Scope

In November 2021, the Commission put forward a proposal for regulating various political advertising techniques including targeting. This proposed regulation on the transparency of political advertising is currently being discussed in the national parliaments of the Member States as well as by the EU co-legislators. The primary objective of the proposal is to establish harmonised rules and a high level of transparency for political advertising in the EU. The second objective is to promote the protection of personal data by laying down rules on targeting and amplification techniques in political advertising. These rules would apply to all data controllers using targeting and amplification techniques, and not only to political advertising companies. 

There are several interesting elements to unpack in the Commission’s proposal. In this post, I will concentrate on two: (1) how the proposed regulation may affect the right to freedom of expression (Article 11 CFREU) and (2) the legal basis for such a regulation.Continue reading

The GDPR enters the SLAPP scene: GDPR proceedings as emerging forms of strategic litigation against public participation

The EU General Data Protection Regulation 2016/679 (GDPR) imposes far-reaching obligations on those handling personal data, and in principle this conclusion also holds for those who handle personal data for journalistic purposes. Mindful of the potential tension between data protection and journalistic freedoms, the GDPR provides for a so-called journalistic exemption. However, due to incomplete, confused or overly narrow national implementations of this journalistic exemption, the GDPR is increasingly discovered as an instrument to discourage, or punish, critical news coverage. GDPR-based litigation and administrative proceedings emerge as new forms of strategic litigation against public participation (SLAPP), with dangerous implications for the protection of public interest journalism in Europe. After providing a brief background note on SLAPPs, this blogpost explores the interface between the GDPR and journalistic activities and draws on GDPR proceedings from various EU Member States to illustrate the potential of the GDPR to be instrumentalised as a SLAPP strategy.Continue reading

Developing Billiard Skills: The CJEU Judgment in Euro Box Promotion, a Reaction to Recent Romanian Constitutional Case Law

Introduction and Background

Shortly before Christmas, the CJEU delivered a decision in Euro Box Promotion and Others which is likely to open a new chapter in its relationship with national constitutional courts. Reasons for the judgment were several references made by Romanian courts. In the national proceedings before the referring courts, several Romanian politicians, belonging both to the executive and the legislature, were accused of corruption, not only of violating national law but also affecting EU financial interests, in particular misusing EU funds. The reason for the references were the relatively recent judgments of the Romanian Constitutional Court which effectively banned certain criminal fraud proceedings against national (active and former) politicians. Continue reading

EU Draft Artificial Intelligence Regulation: Extraterritorial Application and Effects

Introduction

As is known, AI has become part of everyday life. Although AI may make human life more efficient and easier, it may also impact negatively; it has the potential to cause many risks like discrimination, privacy violations, safety and security risks. These concerns led to the legislative actions on AI. In April 2021, the European Commission (EC) published Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Proposed AIA) which follows a “risk-based” regulatory approach (analysed here in the blog). The EC aims to create a human-centric, sustainable, secure, and trustworthy framework for AI applications. The Proposed AIA is still being discussed and negotiated by the European Parliament and the Council of the EU. The Council of the EU presented the Presidency Compromise Text (AIA) in November 2021. Although the AIA will undergo further changes during the legislative procedure, it presents a clear idea of the future of the legal framework of AI systems. Similar to the General Data Protection Regulation (EU) 2016/679 (GDPR), one of the most important effects of the AIA will be extraterritorial scope which will impose significant obligations for non-EU businesses. Therefore, the AIA will not only apply to providers and users established in the EU. In certain situations, which are determined under Article 2 AIA, the rules will also apply to providers and users established outside of the EU. This blog post focuses on some of the key criteria and considerations on the extraterritorial scope of the AIA, as well as the impact on users and providers outside the EU. Continue reading

EU/US Adequacy Negotiations and the Redress Challenge: How to Create an Independent Authority with Effective Remedy Powers

Can the U.S. Government create, by non-statutory means, an independent redress authority capable of providing an effective remedy for a European person who believes that her or his rights have been infringed by an intelligence service? In this article we put forward a novel non-statutory solution that could resolve the “redress” problem in the EU/US adequacy negotiations. This solution is based on three “building blocks” inspired by methods utilized in U.S. administrative law. First, the U.S. Department of Justice should issue a binding regulation creating within that executive agency an independent “Foreign Intelligence Redress Authority” (FIRA). Second, the President should issue a separate Executive Order providing the necessary investigative powers and giving FIRA’s decisions binding effect across the intelligence agencies and other components of the U.S. government. Finally, European individuals could obtain judicial review of an independent redress decision by using the existing Administrative Procedure Act.

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