Bulk data interception/retention judgments of the CJEU – A victory and a defeat for privacy

Introduction

On 6 October 2020, the Court of Justice of the European Union (CJEU, the Court) delivered its judgments in Case C-623/17, Privacy International, and in Joined Cases C-511/18, La Quadrature du Net and Others, C-512/18, French Data Network and Others, and C-520/18, Ordre des barreaux francophones et germanophone and Others (referred to as La Quadrature du Net and Others). Both judgments continue the long line of case-law on the secondary use of personal data by intelligence services and law enforcement agencies, in particular traffic and location data initially collected by service providers for commercial purposes (see in particular Joined Cases C‑293/12 and C‑594/12 Digital Rights Ireland, Joined Cases C-203/15 and C-698/15 Tele 2, Opinion 1/15 of the Court on the draft EU-Canada PNR Agreement, Case C-207/16 Ministerio Fiscal).

While the Court in both judgments decides on landmark cases, which have a number of commonalities, and were heard in a joint hearing in 2019, their nature and outcome are quite different. On one hand, Privacy International is an easy victory for the right to privacy and data protection. The Court unequivocally confirms that the state authorities are not allowed to intercept personal data, originating from commercial operators, in bulk. La Quadrature du Net and Others on the other hand, is a complex victory for the law enforcement community and a major step back in the Court’s data retention jurisprudence.

The two-decades-long conflict between the law enforcement and the privacy communities is still ongoing[1]. In what follows, I therefore decided to briefly present the facts of the case and then to divide the main outcomes of the two judgments in three victories for one or the other camp, without pretensions to be exhaustive on every single point of the judgments.

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The European Commission’s Rule of Law Report: a key tile in the mosaic of rule of law protection in the EU

Will the newly launched Report strengthen the already existing toolkit of the European Union to prevent and resolve violations of the rule of law in Member States?

On the 30th of September, the European Commission released its long-awaited first EU-wide annual “Rule of Law Report” on the situation of the rule of law in the European Union. The Rule of Law Report is one of the major initiatives of the Commission’s Work Programme for 2020, and part of the comprehensive European Rule of Law Mechanism announced in the Political Guidelines of the President. The goal is to focus on improving understanding and awareness of issues and significant developments, identifying rule of law challenges and helping Member States find solutions with support from the Commission and the other Member States, as well as stakeholders including the Venice Commission. Largely as a response to the so-called democratic backsliding, the Commission assembled portfolios on every Member State, covering four main pillars: national justice systems, anti-corruption frameworks, media pluralism and freedom, and other institutional issues related to the checks and balances essential to an effective system of democratic governance.

The first Report found that the rule of law is facing important challenges in some Member States, notably Hungary and Poland where the judicial systems are under threat. The report also voiced concerns about the independence of the judiciary and corruption in Bulgaria, Croatia, the Czech Republic, Hungary, Malta, Romania and Slovakia. Unsurprisingly, Hungary immediately dismissed the report as irrelevant and biased, arguing that they are being unfairly targeted, while the European Union has been accusing both countries of violating rule of law standards for years and pursuing sanction procedures against them.

The expectations on the new Rule of Law Report have been especially high with regard to cases like Hungary and Poland. Nevertheless, sanctions and grandiose commitments for action – to which the Report admittedly falls short – are not the only tools to combat the rule of law crisis. While, indeed, intervention and problem-solving lie in the one side of rule of law protection, on the other side, rests pre-emptive monitoring. In this context, the Report should be welcomed, as a crucial tile in the monitoring effort, but also as a significant contribution to problem-solving, and as a good precedent for more initiatives, such as the preliminary agreement to tie access to EU funds to respecting the rule of law.

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Academic freedom in illiberal times – A bittersweet victory for the Central European University

It is troubling to see how intimidation tactics and smears have seamlessly transformed into some of the Hungarian government’s defining policies. As is well-known, Viktor Orbán’s personal disdain for George Soros, Hungarian-born US businessmen, has inspired several legislative reforms. These included the introduction of a transparency register for foreign NGOs, which was recently found incompatible with Union law (analysed here), and the so-called ‘Stop Soros’ legislation, the latter being subject to ongoing infringement proceedings before the Court of Justice. In a recent grand chamber judgment, the Court brought yet another blistering defeat to the Hungarian government, albeit one that leaves a bitter taste in the mouth.

The case formally concerned the reform of the Hungarian higher education law, but effectively targeted one institution only, namely the Central European University (CEU). This inspired the hashtag-worthy yet appropriate term ‘lex CEU’. The reforms were a relatively transparent attempt to frustrate the university`s activities in Hungary and to force it out of the country. Even though the Court unequivocally sided with the Commission, the CEU, in the meantime, was forced to relocate to Vienna, where it opened its new Campus. Against this background, Hungarian MEP Katalin Cseh put it best when she reportedly noted that ‘justice delayed is justice denied’.

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Protecting Civil Society Organisations in the Member States – The Court’s Decision in C-78/18 on the Hungarian NGO Transparency Law

Introduction

In a recent judgment, the Court of Justice of the European Union (Court) held Hungary liable for infringing upon the free movement of capital (Article 63 Treaty on the Functioning of the European Union (TFEU)) by introducing a new NGO Transparency Law (the Law). At the same time, the Court declared that the Law infringed the Charter of Fundamental Rights of the European Union (Charter) by contravening the right to respect for private life, the right to the protection of personal data and the right to freedom of association (respectively, Articles 7, 8 (1) and 12 of the Charter).

The backdrop of the case is the ongoing rule of law crisis in the European Union (see here). As a result of political changes in Hungary since 2010 (for further background see here), media and civil society pluralism are increasingly under threat in Hungary. The Hungarian government encroaches in several ways upon the media and the non-governmental sector (see here).

This case highlights an encroachment on the civil-society in Hungary via a Law requiring excessive transparency standards from non-governmental actors. The case results from infringement proceedings launched by the European Commission (Commission) under Article 258 TFEU in December 2017 (see here). This blog post will analyse the Court’s judgment, comment on the importance of the case in the ongoing EU rule of law crisis and highlight the Court’s approach towards so-called ‘integrated Charter infringements’ (i.e. infringements of the four freedoms of the Single Market which at the same time also infringe rights enshrined in the Charter). The case is emblematic for discriminatory national laws in Hungary that infringe upon EU fundamental rights.

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Former EU workers, school children, and the limits of social solidarity in the EU – Case C-181/19 Jobcenter Krefeld v JD

Note that at the time of writing this post, an English version of the judgment is not available.

On 6 October 2020, the Grand Chamber of the CJEU delivered an important decision clarifying and reinforcing the right to equal access to social assistance of Union citizens resident in a host Member State. More specifically, the decision concerns Union citizens resident on the basis of Article 10 of Regulation No. 492/2011 (Workers Regulation). According to Article 10 of the Workers Regulation, children of EU migrant workers enjoy a right of equal access to education in the host Member State. This right extends beyond the worker status of the parent, i.e. even when the EU citizen ceases to be a worker in the host state, his/her child continues to enjoy the right to education.

The new judgment builds on the previous expansive case law of the Court of Justice on this right and firmly distinguishes it from its Dano line of case law.

Before diving into the case, I will briefly explain the right provided by Article 10 of the Workers Regulation. The right to equal access to education can be broken down into three interdependent components:

  • the right of equal access to education of the child of a migrant worker in the host Member State (this right continues even once the parent ceases to be a migrant worker – see Baumbast, para 69);
  • the right of residence of that student in the host Member State (this continues even if the parent moves back to the home Member State – see Moritz and Echternach, paras 22-23); and
  • the right of residence of the primary carer of that student in the host Member State (see Baumbast, para 71).

The Court of Justice has also previously held that Article 10 of the Workers Regulation applies independently from the residence requirements set out in Article 7 of Directive 2004/38 (Citizenship Directive). Consequently, the primary carer and student have to be granted a right of residence, even if they cannot, for example, show that they have sufficient resources or comprehensive health insurance, as is provided under Article 7(1)(b) of the Citizenship Directive (see Teixeira, paras 53 &70).

In Jobcenter Krefeld v JD, the Court of Justice has now added a fourth component: the right to equal access to social assistance.

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The Commission’s argument for breach of good faith against the United Kingdom: an in-depth analysis from the standpoint of public international law

With under 3 months to go until the end of the transition period amidst negotiations which could hardly be described as successful, it might be considered politically imprudent for the UK government to call into question its obligations under the Withdrawal Agreement (WA).  Ostensibly, the United Kingdom Internal Market Bill (UKIM Bill) creates a conflict between UK domestic law and the UK’s international law obligations under the WA, containing provisions that would provide a discretion for Ministers to create regulations allowing for the disapplication within domestic law of parts of the Northern Ireland Protocol (NI Protocol). Such secondary legislation would apply ‘notwithstanding any inconsistency or incompatibility with international or domestic law.’

I will consider below the actual and potential breaches of the WA by the UKIM Bill. I argue that legally the provisions are deeply concerning for a country which prides itself on upholding the rule of law and politically they pose serious trust issues at a time when the UK and EU are running against the clock to agree a future relationship treaty. In this latest contribution to the blog considering the Commission infringement action against the UK, following the earlier analysis published by Oliver Garner, I will analyse the substance of the Commission’s argument for breach of good faith against the United Kingdom from the standpoint of public international law, providing a deeper analysis of the Commission’s infringement claims and potential UK responses.Continue reading

Competition law and sustainability: Dutch authority makes headway with draft guidelines

From 9 July to 1 October 2020 the Netherlands Authority for Consumers and Markets (ACM) conducted a public consultation on its draft guidelines on applying EU competition rules to agreements promoting sustainability (Draft Guidelines). Against a wide background of political initiatives and binding duties to address sustainability, the ACM is the first competition authority to propose guidelines that depart from the European Commission (Commission) 2004 guidance limiting an exemption to efficiencies benefiting consumers (Article 101(3) TFEU Guidelines). The Hellenic Competition Commission has followed with an extensive staff discussion paper, while sustainability is also part of the Commission’s review of two block exemption regulations. The Draft Guidelines thus set out a path that other authorities may take regarding sustainability.

It is not the first time that sustainability throws the ACM into the limelight: in the 2015 Chicken of Tomorrow case, the ACM decided not to exempt an agreement aiming to improve animal welfare because it estimated consumers were not willing to shoulder the price increase. Emboldened by its follow-up study that animal welfare had improved in the wake of its decision, the ACM has transposed this ‘willingness-to-pay test’ to the Draft Guidelines. However, it also proposes an exception to this test for ‘environmental damage agreements’: by calculating ‘environmental prices’ that incorporate externalities like pollution or carbon emissions, the ACM would be able to analyse whether the cost of those agreements to consumers is offset by benefits for society.

The ACM should be lauded for formalising the importance of sustainability for its enforcement even if, as this post will discuss, some legal choices are off-key. The Draft Guidelines are not a token effort: the ACM offers to provide help in individual cases and will not impose fines in cases of good faith of compliance. The ACM’s caution against ‘greenwashing’ – the risk of cartels disguising as sustainability agreements – is also understandable. It is nevertheless worth questioning if cost-benefit frameworks like willingness-to-pay and environmental prices are the most appropriate tools available. EU law does not limit sustainability to such a narrow economic mandate, from the Charter of Fundamental Rights to the Treaties.

The ACM’s full legal competence thus deserves to be developed in the future guidelines. Sustainability can fall under Article 101(3) TFEU, as the Draft Guidelines advance, and as always undertakings must be required to substantiate benefits to consumers when they want to deviate from the competitive process. However, this framework becomes inadequate or superfluous outside the benefits to consumers mentioned in the Treaty. Precisely because of this, the Court of Justice of the EU (Court) has devised a public policy justification in Wouters. The omission of this case law from Draft Guidelines is hard to square with its intention to explore ‘Opportunities within competition law’ for sustainability initiatives.Continue reading

True (Bad) Faith 2020? Part One: The Commission Infringement Action against the United Kingdom for breach of the Withdrawal Agreement

In addition to being an editor at the European Law Blog, the author is the Brexit Research Fellow at the Bingham Centre for the Rule of Law, BIICL. Within these auspices, he jointly prepared the Rule of Law Monitoring of Legislation Project report on (now) clauses 44,45 and 47 of the UK Internal Market Bill.

 The European Law Blog will continue its engagement with the possible case. Part Two of this post will consider a potential UK counter-argument, and John Bell (Queen Mary University London) will be engaging in a deeper analysis of the Commission’s infringement claims.

 Introduction: Infringement?

 Following the referendum on 23 June 2016, some used to think that the (exit) day would never come. However, the treaties of the European Union did indeed cease to apply to the United Kingdom on 31 January 2020, and since that date the two parties have been embroiled in a Brexit epilogue legal and political psychodrama. The latest twist in the plot came on 1 October 2020, when the European Commission announced that it had commenced infringement procedures against the United Kingdom for alleged breach of the EU-UK Withdrawal Agreement.

The letter of notice marks the EU’s formal administrative reaction to the UK Internal Market Bill 2019-21, proposed by the United Kingdom government on 9 September 2020. This move signals a transition from the hypothetical phase of academic, civil society, and political claims that clauses 44, 45 and 47 may constitute a suite of actual and potential breaches of the UK’s obligations under the main text of the Withdrawal Agreement (WA) and the Protocol on Ireland/Northern Ireland (NIP), to the actual determination of those claims before authoritative judicial bodies.

The first post in this two-parter will summarise the Commission’s arguments, before considering the legal base and enforcement mechanisms for the infringement procedures. It may be speculated that temporal vicissitudes have influenced both the timing and substance of the Commission’s claim against the United Kingdom. Once the transition period ends on 31 December 2020, the direct jurisdiction of the Court of Justice of the European Union over the whole of the Withdrawal Agreement will come to an end. Therefore, ‘the clock is ticking’ for the EU to ventilate an argument before the Luxembourg court that the UK is in true breach of its good faith obligations under Article 5 of the Withdrawal Agreement.Continue reading

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