New laws of forgetting – The German Constitutional Court on the right to be forgotten

  1. Introduction

Empirical research has shown that the processes of human remembering and forgetting are subject to a number of laws: Neurosciences prove that forgetfulness is related to the gradual decline of brain synapses, psychology indicates that memory is deeply influenced by emotional affection, and cultural studies argue that oblivion is fundamentally subject to broad social and political changes.

Roughly five years ago the European Court of Justice (CJEU) added another law to these processes of remembering and forgetting: data protection law. Bringing into being what would become known as the right to be forgotten (rtbf), the Court in Google Spain SL ruled that the European Data Protection Directive equipped individuals with a right to have their personal data delinked from search engines or deleted completely. Last Wednesday the rtbf was introduced a new institutional stepparent: the German Federal Constitutional Court (GCC). Delivering judgments on two constitutional complaints – faithful to the GCC’s titling, we will call them RTBF I and RTBF II -, the Court not only ushered in a new phase of European judicial cooperation, but also provided new interpretations for the rtbf which lead to several conflicts with the CJEU.

After briefly sketching the GCC’s new conception of multilevel EU fundamental rights protection, I illuminate the two major inconsistencies vis-à-vis CJEU-interpreted European data protection the judgments lead to. In conclusion, I give a short outlook on potential future developments.Continue reading

The rule of law and the EU enlargement to the Western Balkans

The recent decision of the European Council not to open the EU accession negotiations with North Macedonia and Albania has led to many a criticism both from the Western Balkans states (herein WB6) and some of the leading EU officials. The decision was motivated primarily by French President Macron’s belief that the enlargement process is flawed as it fails to bring transformation to the WB6 states, and that the EU should first reform itself before it proceeds to further enlargement. The critics have pointed out that the decision is a ‘historical mistake’ and that it leaves the region open to the influence of other international actors such as Russia, Turkey and China.

Less attention, however, has been paid to the consequences that the decision might entail for the rule of law and its promotion in the WB6 region. While most of the criticism of the process has been reserved for domestic actors and their unwillingness to implement EU driven reforms, much of the recent criticism focuses on the role that the EU itself has had. The EU influence is perceived as ‘stabilitocratic’, by strengthening the existing regimes which are hostile towards rule of law and democracy or, even pathological, as it does not pay sufficient attention to the breach of procedural rights of those prosecuted for corruption. It is argued that, even for the states that have advanced forward in the enlargement process, such as Montenegro and Serbia, the protection of some fundamental rights and freedoms has not been strengthened but weakened. Progress in the enlargement process through the opening of the negotiation chapters did not equal progress in the strength of the rule of law and quality of governance. It seems that Bosnia and Kosovo, while not being granted candidacy status, are not that far away in terms of standards in either of the two areas or, at least, less backsliding has been recorded there than in Serbia and Montenegro which remain the only two states among the WB6 that have opened the chapters of the acquis. Also, many of the proposed reforms, such as the introduction of the judicial councils, have been overvalued to begin with and have not led to either an increase of trust in the judiciary or to it becoming more independent and willing to tackle organized crime and corruption. Continue reading

Case C-233/18 Haqbin: The human dignity of asylum seekers as a red line

In November 2019, in the Haqbin case, the Court of Justice of the European Union (ECJ) held that an applicant for international protection guilty of serious breaches of the rules of the accommodation centre in which he or she is hosted or of seriously violent behaviour cannot be sanctioned by a withdrawal of material reception conditions relating to housing, food or clothing. This would violate the principle of proportionality and undermine the human dignity of the applicant. The judgment is of great importance, as many Member States sanction unruly asylum seekers with the withdrawal of exactly these reception conditions.Continue reading

The independence of the disciplinary chamber of the Polish Supreme Court or how to forget about discipline

On the 19th of November 2019, the Court of Justice (the Court), ruled on the joint cases concerning the independence of the disciplinary chamber of the Polish Supreme Court (C-585/18, C-624/18 & C-625/18), intervening in the context of what is often described as a ‘rule of law crisis’. It all goes back to 2015, when the new governmental majority introduced a reform of the Constitutional Court, later followed by the reforms of the Supreme Court and of the National Council of the Judiciary (NCJ). The latter were found contrary to the Union standards of judicial independence in Commission v Poland, discussed here. Five aspects of those reforms are relevant for the cases at hand. First, the lowering of the retirement age of Supreme Court judges to 65, unless the Polish President, after receiving an opinion from the NCJ, consents to their request for continuation of their post. Secondly, the nomination by the Parliament of the majority of the NCJ’s members. Thirdly, the exclusive jurisdiction of the newly created disciplinary chamber for disputes on the retirement of Supreme Court judges. Fourthly, that the members of this chamber are selected by the NCJ and nominated by the President. Finally, the incomplete nominations for that chamber at the material time of the cases, which led to the filing of the disputes before the labour and social insurance chamber of the Supreme Court (the referring chamber). Departing from the Court’s assessment on the Union’s standard of independence, the post discusses some aspects of judicial cooperation, with a focus on the ECHR, the articulation of primacy with sincere cooperation, and the empowerment of national judges to set aside jurisdictional rules.Continue reading

The infringement action against the UK for failing to nominate a new Commissioner

The further extension of the UK’s membership to 31 January sees the UK remain a Member State beyond the re-scheduled date of 1 December for the new Commission to assume office. This has prompted the incoming Commission President Ursula von der Leyen to request the United Kingdom Prime Minister to nominate a Commissioner.

On 13 November the United Kingdom informed the European Commission that it would not appoint a new Commissioner before the national General Election on 12 December. The failure to do so has prompted the Commission to initiate infringement proceedings against the UK.

The UK was given until 22 November to respond to the proceedings, which it has failed to do. Thus on 25 November the Council adopted the list of Commission candidates to be approved by the European Parliament without a nomination by the United Kingdom. The European Parliament will vote on the candidates in plenary session on 27 November.

This post will first analyse the legal sources informing the infringement proceedings. It will then consider the proceedings as a reactive mechanism to ensure the UK’s compliance with EU law during extension, contrasting this to pro-active measures used for previous extensions. Finally, the post will conclude with consideration as to how the UK’s empty chair crisis could impact upon the legitimacy of measures adopted under the new Commission for the EU and the UK.Continue reading

GC & others vs CNIL and Google: This is a special case

On the 24 September 2019, the Grand Chamber of the Court of Justice (hereafter: ECJ) released its judgment in the second of two cases in as many weeks concerning the ‘Right to be forgotten’. The first, Google v CNIL, tacked the territorial scope of the right. In the second, GC, AF, BH, and ED v Commission nationale de l’ínformatique et de Libertes (CNIL), Premier ministre, and Google LLC (hereafter: GC), the Court tackled a request for a preliminary ruling after the French data protection authority (CNIL) refused to require Google to dereference various links to third party websites in the list of results displayed following searches of their names.

A claimant known as GC wanted a link to a satirical photomontage depicting her in an illicit relationship with a politician removed from Google’s search returns. AF wanted search results removed that identified him as a public relations officer for the Church of Scientology, a position he no longer held. BH wanted deindexing of articles linking him to contemporaneous investigations into the funding of political parties, but that did not reveal their outcomes. ED had requested the de-indexing of articles that mentioned a prison sentence of seven years and ten years judicial supervision for sexual assaults on children under the age of 15. The common thread between all of the parties was that the links included special categories of personal data within the meaning of Article 8(1) and (5) of the now repealed Data Protection Directive 95/46/EC (similar provisions can now be found in Article 9 of the European Union’s General Data Protection Regulation). Continue reading

Implementation of the EPPO in Belgium: Making the Best of a (Politically) Forced Marriage?

  1. Introduction: Belgian Academic Study on the EPPO Implementation

Two years have passed since the adoption of the Regulation on the European Public Prosecutor’s Office (‘EPPO Regulation’ or ‘Regulation’), a legal and political milestone. The initial proposal of the Commission (discussed by V. Franssen on this blog) was published in 2013 and difficult legislative negotiations followed. National parliaments even pulled out a ‘yellow card’ (see this blog). The proposal reflected a strongly ‘federal’ logic, but after negociations, the EPPO eventually metamorphosed into a hybrid institution, linking up EU and Member State prosecutors. It is the fruit of conflicting visions (both at the EU and at the national level) on the need for a new institution, on its status with respect to existing law enforcement and on its authority. At some point the whole project seemed ‘dead in the water’, but the Commission finally managed to push it through under the form of enhanced cooperation, involving eventually 22 participating countries.[1] However, the EPPO’s creation does come across as a top-down policy choice of the political authorities, rather than a response to a pressing request from existing prosecution services or from Eurojust.

The EPPO should be operational by November 2020. The participating Member States must ensure that their national legal system is compatible with the Regulation by then. While regulations are directly applicable in the national legal order, the EPPO Regulation refers to national law for several aspects, e.g. the conditions, procedures and modalities for taking investigative measures (Art. 30). That makes the implementation process particularly tricky, especially since the logic behind the EPPO does not necessarily match the way in which criminal investigations and public prosecution are designed by Member State law. Even after the implementation of several so-called ‘Roadmap’ directives on suspects’ rights and victims’ rights, the approximation of national criminal procedures by EU law remains limited.[2] In addition, the EPPO Regulation sometimes uses terms that are unknown in national criminal procedure or redefine existing terms.

Member States also have to ensure the practical integration of the EPPO into their criminal justice systems. The EPPO is an ‘indivisible Union body operating as one single office with a decentralised structure’ (Art.  8(1), see also Art. 3(1)), in other words an EU-wide prosecution service with a central office in Luxembourg and decentralised offices at the national level (Art. 8(2)). Member States will inevitably navigate between the rules set by the Regulation and the margin of appreciation it leaves in order to respect the diversity of national criminal procedure (cf. Recital (15)).

The analysis below will first briefly summarise the main features of the EPPO to set the scene for the subsequent analysis. Then we will focus on some key issues in the implementation process, both in general and specifically for in Belgium, based on the outcome of an independent academic study conducted by the authors of this blogpost (the ‘academic team’) at the request of the Belgian Federal Public Service for Justice (i.e. the Ministery of Justice). This study was finalised in August 2019. Its findings may be useful for the other Member States which are in the process of making their systems compatible with the EPPO system. That said, the conclusions of the study on the (tremendous) implications of the EPPO for the prominent role of the customs and excises authorities in prosecuting customs offences will not be discussed in this blog post, as they are highly technical, mainly affect Belgium and Luxembourg, and would merit a separate contribution. Continue reading

Playing Chess like Commissioner Vestager

Every world chess champion possessed his own unique playing style. Tigran Petrosian was dubbed “Iron Tigran” due to his impregnable defensive style. Anatoly Karpov’s positional style earned him the nickname “boa constrictor”. Jose Raul Capablanca was known as the “human chess machine” because of the relentlessly accurate manner in which he bested his opponents.

Were Commissioner Vestager to play high-level chess, she would probably play like Mikhail Tal. The so-called “Magician from Riga” was a formidable world chess champion. Known for his creative attacking style, Tal was daring and unpredictable on the chess board. His dramatic combinational play allowed him to confuse and rattle his opponents, who would usually proceed to make errors and concede defeat.

The way the board is set these days, few areas of EU competition law are as topical as fiscal state aid. The household names involved in the tax ruling cases (e.g. Apple, Amazon, Starbucks), coupled with the transatlantic tensions to which they have occasionally given rise, have brought state aid policy to the forefront of Commissioner Vestager’s work.

Building on some noteworthy quotes by Mikhail Tal, this post will endeavour to make sense of the different moving pieces on the state aid chessboard, describe the current state of play and evaluate the Commissioner’s “checkmating” odds. Continue reading