Case T-578/22: Supervising Europol’s Big Data Challenge – making ‘the best of it’ by means of (limited) administrative enforcement powers

Blogpost 58/2023

On 6 September of this year, the General Court declared the European Data Protection Supervisor’s (EDPS) action to annul two provisions laid down in the new Europol Regulation inadmissible (T-578/22). These two provisions retroactively legalise unlawful data processing activities by the EU Agency for Law Enforcement Cooperation (Europol). While this action for annulment could help in bringing an end to the lengthy saga between the EDPS and Europol, the lack of legal standing seems to imply that the EDPS will have to continue to make ‘the best of it’ by resorting to its (limited) administrative enforcement powers.

This blogpost argues that the new Europol Regulation forms a threat to the protection of the fundamental right to data protection, while the EDPS’ possibilities for monitoring and supervising compliance with the EU’s data protection rules remain limited. Furthermore, the separation of powers seems to reduce the EDPS’ possibilities to intervene in the law-making process, which makes it particularly relevant that the EDPS is able to seek legal protection where new legislative initiatives violate the fundamental right to data protection, something that is currently being denied by the General Court.

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So long and see you in the next pandemic? The Court’s one-and-done approach on permissible reasons to restrict freedom of movement for public health reasons in the Nordic Info case (C-128/22) of 5 December 2023

Blogpost 57/2023

To what extent were covid-19 measures such as closed borders, quarantines, and obligatory testing permitted under EU law? The judgment in the case Nordic Info BV published on December 5 2023 sheds some light on the complicated relationship between the freedom of movement, the EU’s “cherished child”, and the fight to limit the spread of a deadly pandemic.

In the spring of 2020, when the covid-19 swept through Europe, most governments imposed lockdowns as a measure of last resort. Belgium, where the tour operator Nordic Info BV, was based, closed its national borders to non-essential travel of non-nationals and non-residents. This rule was gradually relaxed in summer 2020 to allow travel to low-risk areas (i.e. those labelled as green or orange on the ECDC’s famous map). However, some areas swiftly received a red label, including Sweden, where Nordic Info was forced to cancel its summer trips. Consequently, the company sued the Belgian government for damages incurred.

The AG’s opinion has already been analysed on the ELB, aptly calling the AG a legal therapist dealing with an extremely unusual legal situation. The focus of this blogpost will instead be the judgment; specifically, the Court’s evaluation of the permissible restrictions on EU citizens’ freedom of movement in the name of protecting public health during a pandemic. As already explained by my colleague in his blogpost, while the Citizens’ Rights Directive (Directive 2004/38/EC of 29 April 2004, CRD) explicitly allows for it, the Schengen Borders Code (Regulation (EU) 2016/399 of 9 March 2016, SBC) is silent on the issue. Previous case law hinted at the option of considering health threats as a threat to internal security and public policy, which is corroborated in this decision.

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Sense and Sustainability: Is the new Green Claims Directive going to advance the cause of green consumerism?

Blogpot 56/2023

‘Eco-friendly’ and ‘climate-neutral’ have become beloved phrases when it comes to marketing and labelling of everyday products. Apparently to such an extent that companies have decided to include such stickers on the packaging of their products, without actually doing, i.e. contributing anything towards the fight against climate change. This ‘eco-frenzy’ has gone so far that inherently environmentally unsustainable products and services are marketed as ‘eco-friendly’, such as airline flights or plastic bags. The European legislator has finally responded and proposed the so-called Green Claims Directive. This piece of legislation seeks to combat greenwashing commercial practices by harmonising the requirements and labelling schemes of Member States. From the consumer’s perspective, greenwashing is not merely a matter of preference; it is a question of credibility. Under current regulations, companies can often evade their environmental commitments, with the European Commission estimating that 40% of such claims are entirely unsubstantiated. For consumers, who truly strive towards more sustainable consumer habits ‘to wish was to hope, and to hope was to expect’ (Jane Austen, Sense and Sensibility). Will the Green Claims Directive improve consumer confidence regarding green claims?

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OP v Commune d’Ans: The ‘Entirely Neutral’ Exclusion of Muslim Women From State Employment

Blogpost 55/2023

In OP v Commune d’Ans, the Court of Justice determined that a rule maintained by a Belgian municipality, which prohibited the showing of any signs of religious faith in the municipal workplace, could be justified by the cause of preserving an ‘entirely neutral administrative environment’. The measure primarily affected Muslim women who wished to wear a headscarf, and the effect is to de facto exclude such women from municipal employment, but the Court considered this less important than the preservation of this neutrality.

There were a few provisos. Firstly, the rule had to be imposed strictly and universally. The practice of tolerating discreet crosses on a necklace, and so on, common in Europe, could not be accepted. It was all or nothing. Secondly, the judgment only says that EU discrimination law does not prohibit such a rule. The Court emphasised that it is primarily for the Member States to determine the balance between religious freedom and other interests. Their courts and legislatures remain free to decide that the banning of all religious signs in public or other workplaces would amount to prohibited discrimination.  They may, following Article 8(1) of Directive 2000/78, give greater protection to equality than the Directive requires. Or not. This judgment essentially washes its hands of the issue, and perhaps the Court felt it had no choice. The idea of the neutrality of the state has a quasi-religious status in some Member States – ironic given that it is used to exclude religion. However, we are shaped by our enemies – and, if the Court had found it contrary to EU law, they might have been faced with non-compliance, not to say revolution, led by a coalition of historically minded constitutional lawyers and Islamophobes.

There is thus something to be said for decentralising this kind of value balancing. Dictating that states must respect values such as equality is gratifying for the one who dictates but not always the most effective way of achieving that result. Sometimes it is better to let communities find their own way to overcome the shadows of their past and rethink their constitutional idées fixes. Nevertheless, for better or for worse, the EU has in fact adopted equality legislation, which precludes direct discrimination, and requires Member States to justify measures which exclude or disadvantage particular groups. That justification process requires them to show the measures actually meet some genuine need.

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What will happen to the refugees and asylum seekers that fled Ukraine? Addressing the threat of legal limbo after temporary protection ends

Blogpost 54/2023

After millions of people fled to the EU following Russia’s invasion of Ukraine, Council Directive 2001/55/EC was activated for the first time in more than 20 years. Temporary protection was designed to protect not only Ukrainian nationals and their family members, but also people recognised as stateless and people granted international protection in Ukraine (see Article 2 of Council Implementing Decision 2022/382). When forced to flee, however, these particularly vulnerable categories face barriers to protection in the EU. These people’s documents may not be recognised by Member States, or they may lack the documents required of third-country nationals. States may insist that asylum seekers and refugees provide the national ID of their country of origin, which is held by authorities in Ukraine: they cannot travel to retrieve it (due to a lack of travel documents).

Many asylum seekers who found themselves in Ukraine when the full-scale war broke out had been waiting for months or years for a decision due to Ukraine’s dysfunctional asylum procedure. Whereas people with international protection documents are explicitly included in the scope of temporary protection, people who were seeking asylum are much less likely to be protected. They are not specifically included in the scope: rather, Member States can choose to offer temporary protection to people who were legally residing in Ukraine and cannot return safety to their country (or can instead offer “adequate protection under national law” – Article 2(2) of Council Decision 2022/382). On these grounds, some asylum seekers have received temporary protection, but most have been redirected to the asylum procedure or remain without status.

Temporary protection currently lasts until 4 March 2025. After this date, temporary protection holders must either access another legal status in the EU Member State they reside in, or return to Ukraine if – and only if – the hostilities have ended (Article 21 of Council Directive 2001/55/EC). Non-Ukrainian refugees and asylum seekers, even if they have received temporary protection so far, risk being excluded from national statuses offered when the Council Directive 2001/55/EC expires. Further, they risk being returned to their country of origin, or to Ukraine (while conflict persists), or being held in detention. Those who did not succeed in obtaining temporary protection are in an even more frightening situation: they may be undocumented, or unable to access an asylum procedure. Currently, no EU-wide approach has been announced that would offer harmonised and durable legal status to the some four million people currently protected by temporary protection.Continue reading

The Lisbon treaty’s dual-use conundrum: a barrier to EU space endeavour?

Blogpost 53/2023

An asset with a ‘dual-use’ nature is relatively simple in theory – it is an asset that inherently has the potential for both civilian and military applications simultaneously. Nowhere is this a more prominent feature than in the space industry, within which the vast majority of assets could be said to possess such a ‘dual-use’ nature.

In the context of the EU’s quest to better regulate and stimulate the European space industry in the face of pressing external (and internal) concerns and competition, however, this may result in many legal difficulties. The Lisbon Treaty is relatively unaccommodating for the supranational governance of such sensitive dual-use assets, because it features a fundamental divide between civilian competences (governed predominantly supranationally) and defence/security competences (governed predominantly intergovernmentally).

This blogpost will thus briefly explore why the dual-use nature of space assets, combined with the Lisbon Treaty’s particular legal architecture, may complicate or hinder the EU’s plans for broadened and deepened space governance. It may render certain (in context, necessary) actions entirely infeasible, slow down the legislative process, or require the dilution of legislative initiatives, and thus diminished effectiveness, so as to ensure they are able to be passed into law.

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The commercialisation challenge to academic freedom: a matter for EU law

Blogpost 52/2023

The illiberal challenge to academic freedom emanating from national governments, and notably in Hungary, has brought the topic of academic freedom to the spotlight also in EU law.

Increased EU institutional activity followed, including the launch of the European Parliament STOA Forum for Academic Freedom (STOA Forum), which has as one of its tasks to monitor academic freedom in the Member States. Following its launch last year, it had its high-level annual conference at the end of last month (29 November 2023). This initiative is to be welcomed. It provides a platform for assessing and discussing academic freedom challenges occurring at the Member State level and possible solutions facilitated by the EU level. However, there remains a blind spot in the academic freedom debates as currently conducted at EU level: the commercialisation challenge to academic freedom which can potentially emanate from the EU or implicate EU activity. That challenge cannot be seriously debated in the absence of a deeper understanding of the content of Article 13 of the EU Charter of Fundamental Rights (‘CFR’).

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AG Ćapeta Opinion on the admissibility of a human rights action for damages in CSDP: filling the gaps in the EU system of legal remedies?

Blogpost 51/2023

In 2008, the European Union (‘EU’) established its largest civilian mission under the Common Security and Defence Policy (‘CSDP’): the European Union Rule of Law Mission in Kosovo (‘EULEX Kosovo’). Among the tasks conferred under the Council Joint Action 2008/124/CFSP, the mission exercises investigative functions into the disappearances and killings that occurred during the 1999 Kosovo conflict. Over the years, families of victims kidnapped and killed have been lodging complaints considering that the mission has not been complying efficiently with its investigative duty, which finds its legal basis both in the Host State law (inter alia: Article 8 of the Law on Jurisdiction No. 03/L-053; Article 5 of the Law on the Special Prosecution Office of Kosovo No. 03/L-052), in the Council Joint Action and under the procedural limb of Article 2 of the European Convention on Human Rights (‘ECHR’).

On 23 November 2023, Advocate General (‘AG’) Ćapeta published her Opinion in Joined Cases C-29/22 P and C-44/22 concerning a human rights action for damages brought before the Court of Justice of the European Union (‘CJEU’) by direct family members of persons who got killed or kidnapped – KS and KD – against the Council, the European Commission and the European External Action Service (‘EEAS’).

This blog post aims at discussing the Opinion of AG Ćapeta and the implications of the KS & KD case in light of the accountability gap characterising the Common Foreign and Security Policy (‘CFSP’) under EU law, on the one side, and the process of the EU’s accession to the ECHR, on the other. Continue reading