Diverging Member State Approaches to the Illegal Use of Force: The Need for EU Cohesion

The question of whether the use of force can be justified based on humanitarian grounds has in recent years re-attracted considerable attention due to a range of incidents, including the air strikes in Syria in April 2018, Turkey’s ongoing military incursions in Syria, and the killing of Iranian major general Soleimani in January 2020. As shown by research conducted by the Just Security blog, the reactions to the air strikes in Syria highlight that the approaches to the illegal use of force among states around the world differ widely. While this is perhaps not altogether surprising, state practice also reveals significant divergence within the EU on this matter, despite being supposed to contribute to strict respect for international law and to pursue a common foreign and security policy.

One of the EU’s objectives is to contribute “to the strict observance and development of international law” which includes respect for the principles contained in the UN Charter (Article 3(5) TEU). Additionally, not only are the EU Member States required to “assist each other in carrying out tasks” stemming from the EU Treaties (Article 4(3) TEU), they must also collaborate “to enhance and develop in their mutual political solidarity”, refraining from actions that would undermine the effectiveness of the Union “as a cohesive force in international relations” (Article 24(3) TEU). Relying on the official statements made by three EU (and NATO) Member States, the Netherlands, Germany and France, in response to the use of force in Syria and Iran, this blog post argues that the absence of a common position regarding the illegal use of force among the EU Member States seriously hampers the Union’s objectives of acting as a cohesive unit on the international stage and of collectively upholding respect for international law.
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Why the PSPP judgment of the German Federal Constitutional Court gives the ECB another incentive to integrate climate change considerations into monetary policy

The recent judgement by the German Federal Constitutional Court (‘FCC’) yields valuable lessons for the European Central Bank (‘ECB’). Not only does it cast doubt on the validity of current and future monetary policy programmes, but it also urges the ECB to demonstrate greater transparency in conducting monetary policy.

The ECB should take the FCC’s concerns seriously when balancing price stability objectives against the effects on other policy areas – such as environmental protection and climate breakdown mitigation. As Ms Lagarde has recently pointed out, the time has come to make climate change mission-critical. Therefore, the ECB should start to undertake climate impact assessments of its monetary policy programmes and thereby prove its active engagement with climate breakdown in order to avoid imminent litigation risks.

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Anonymization by decentralization? The case of COVID-19 contact tracing apps

In the debate on contact tracing apps used in the fight against COVID-19 (COVID-19 apps), an increasing number of experts are resorting to the notion of “decentralization” as an essential component of “privacy preserving” software. While the centralized versus decentralized dichotomy is largely technical, it also has significant implications under EU data protection law. While both the European Commission (EC) and the European Data Protection Board (EDPB) consider the decentralized approach to be “more in line with the [data] minimization principle”, they have not per se rejected the idea of a centralized solution. This contribution intends to provide a brief overview of the (technical) origins of the centralized versus decentralized debate, the role of decentralization in so-called privacy preserving technologies and some of its alleged benefits under the General Data Protection Regulation (GDPR).

From manual to digital contact tracing

Contact tracing, along with other measures such as social distancing and quarantine, has long been used to control the spread of infectious diseases. Traditionally it was performed manually, i.e. by interviewing patients diagnosed positive in order to assemble an interaction graph. Now it is being increasingly carried out with the support of digital tools, ranging from the use of geolocation data to the analysis of mobile traffic information. In the COVID-19 crisis many European countries have resorted to the use of Bluetooth Low Energy (BLE) technology, which is arguably less privacy-invasive than the use of location data.

BLE-based COVID-19 apps rely on the emission and reception of ephemeral identifiers (EphIDs). Broadly speaking, they work as follows. When two individuals cross each other’s path, both apps (i) broadcast their own EphIDs and (ii) record the EphIDs of nearby app users. If an app user becomes infected with COVID-19, he/she has the possibility to provide the operator of the app with information about the fact that he/she is infected and about his/her recent encounters.   information is then used to (i) calculate the risk that someone has been infected following an encounter with an infected user and (ii) should that risk reach a certain threshold, inform that person of the procedure to follow.Continue reading

The German Constitutional Court Decides Price Stability May Not Be Worth Its Price

Gareth Davies will be joining a panel discussing this judgment in an online webinar organized by the European Banking Institute today at 5pm Berlin time.

  1. The GCC worries that the PSPP might be disguised economic policy

In its PSPP judgment the German Constitutional Court (GCC) decided that the ECB should have explicitly considered whether there was an appropriate balance between the monetary policy effects of the Public Sector Purchase Programme (PSPP) (helping push inflation to just under 2% – the mandate of the ECB and a legitimate goal of its actions) and the economic effects (such as making it easier for over-indebted Member States to borrow more, which is not one of the permitted goals of the ECB). Such a balancing, it said, should have been done because it is required by the third element of proportionality, so called ‘proportionality stricto sensu’, and an EU measure which violates the principle of proportionality is invalid and has no effect.

The GCC’s reasoning was based on EU law, nota bene, rather than German constitutional law – albeit that the latter informed its understanding of the former to a problematic extent. The judgment is nevertheless less an attempt to keep the EU out, than to shape it in a certain image. That may be why it is so controversial; in a club of many members, it is more offensive for one to tell the others how it should be run, than for that member to simply turn their back. As well as that, there is another problem: the EU law reasoning is, to put it mildly, incomplete.Continue reading

The European Investigation Order and the hearing of witnesses and experts by telephone conference

The unfortunate circumstances we are enduring due to the COVID-19 pandemic have brought as a side effect the need to resort to technical means of communication to compensate the difficulties of bringing people together for the purpose of judicial proceedings. Thus, technical means which were previously regarded as mere exceptions are already becoming the rule, both at domestic level (for example, urgent legislation has been passed recently in Spain to deal with the new needs stemming from the pandemic, and the use of telematics means has been declared the default situation) and in the field of international cooperation. I will focus on the latter, by briefly analysing one of the measures offered by the European Investigation Order (EIO): the telephone conference (TC). By looking at its concept, features and novelties as compared with the previous cooperation legal framework, we will see it has the potentiality to become a very useful tool in the hands of judicial authorities to hear witnesses and experts who happen to be abroad.Continue reading

The appointment of top prosecutors in Romania: minimizing the role of the judiciary

In Romania, the appointment of top prosecutors is still one of the main competences of the executive power. The legislative procedure in force, which is incomplete and essentially devoid of meritocracy, has required the advice of international experts, such as the Venice Commission, to strengthen the role of the body representing the judiciary, but has also received overwhelming criticism from the European Commission under the Cooperation and Verification Mechanism.

The role of the Superior Council of Magistracy is minimized, despite the recent opinions and reports of the relevant international entities regarding the importance of establishing guarantees for the independence and impartiality of the judiciary, as well as for transparent and depoliticized methods of appointment of judges.

This article will analyse the current situation and the recent changes that have been made by the Romanian legislator, while also mentioning the criticisms of the international and European institutions, the pending cases before the CJEU regarding the rule of law and the needs for further improvements.

Current situation and the recent changes that have been made by the Romanian legislator

In the context of Romania’s accession to the European Union, the judiciary of the former communist country claimed that it had changed and was aligned to those of the democratic countries of Western Europe. On the one hand, there are definitely positive signs: for instance, many young magistrates have entered the judicial system, the National Anticorruption Directorate (DNA) has consistently had serious results, and hundreds of corrupt politicians and magistrates have already been finally sentenced. On the other hand, though, the Cooperation and Verification Mechanism (CVM), which is a transitional measure set up by the European Commission to assist Romania (and Bulgaria) in achieving specific benchmarks in the areas of judicial reform and the fight against corruption, has still not been lifted 13 years after Romania joined the European Union, and the assault against those who fight the scourge of corruption still seems to be in full swing. Continue reading

The PSPP judgment of the German Constitutional Court: An Abrupt Pause to an Intricate Judicial Tango

Revising syllabi is not the favourite part of an academic’s job. Still, this is exactly what the German Federal Constitutional Court (FCC) is now forcing us to do. Its 5th of May judgment on the legality of the ECB’s decisions on the Public Sector Purchase Programme (PSPP) – and on the corresponding soundness of the Weiss European Court of Justice (ECJ) ruling providing it legal validity – will echo for years to come. Before exploring the economic, legal and political ramifications of this ruling, we need to briefly examine the history of the judicial “dance” between the FCC and the ECJ. In this post it will be argued that, although this dance has for now been paused, it shall continue, but the tune and the steps will not be the same. The European melody might be forced to take more “notes” from national “composers” and the ECJ’s steps might need to more carefully avoid treading on the FCC’s toes.Continue reading

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