Poland’s Constitutional Tribunal on the status of EU law: The Polish government got all the answers it needed from a court it controls

On 7 October 2021, Poland’s Constitutional Tribunal declared Articles 1, 2 and 19 of the Treaty on European Union (TEU) to be partially unconstitutional. While the same Treaty provisions had previously been held compatible (see Case K 18/04) with the Polish Constitution, the composition of the Tribunal itself has since changed dramatically. Its latest decision, issued in response to an application from the Polish Prime Minister, by a panel composed of judges appointed in violation of the established procedure has twisted the wording of both the EU Treaty and the Polish Constitution to suit the government’s power struggle with the Court of Justice of the European Union (CJEU). Continue reading

Justice should not be blind to something that is obvious to everyone else – An Analysis of Advocate General Bobek’s Opinion in Nord Stream 2

The Nord Stream 2 pipeline is an offshore import pipeline designed to transmit significant volumes of natural gas from Russia to a landing point in Germany. Over the last years, the European Commission has made various attempts to complicate the realization of the Nord Stream 2 project. There were various reasons for the Commission to try to complicate the project, but primarily this was driven by Eastern European and Baltic States to herd off perceived overreliance of the EU on Russian energy imports. First, the Commission argued that the Gas Market Directive applied to offshore pipelines like Nord Stream 2. This would have meant that new regulatory constraints would be imposed on the pipeline with significant impact on the project financing as well as ownership and operation of the pipeline.  When the Commission legal service confirmed the academic consensus that this was not the case, the Commission changed its strategy. It suggested that an intergovernmental agreement between the EU and Russia that would extend the application of the ‘principles of EU energy law’ to the pipeline was necessary. When the Council legal service found the key factual claims to be wrong and the legal positions by the Commission untenable, the Commission then suggested that an amendment to the Gas Market Directive was needed. Ultimately, this culminated in the suggested amendment to the Gas Market Directive. By the time the Commission first proposed this amendment, the final investment decision for around EUR 8 billion had been taken and significant investments into North Stream 2 had already been made.Continue reading

From the DSA to Media Data Space: the possible solutions for the access to platforms’ data to tackle disinformation

The ability of independent researchers to access online platforms’ data is a precondition for effective platform governance, independent oversight and to understand how these platforms work. In particular, granular access to online platforms’ data allows researchers to carry our public interest research into platforms’ takedown decisions (see e.g. Lumen Database), ads libraries (see here) and recommender systems (see here). Access to social media platforms’ data is also key in tackling mis- and disinformation (see here). In essence, researchers need meaningful access to platforms’ data to identify organized disinformation campaigns, to understand users’ engagement with disinformation and to identify how platforms enable, facilitate, or amplify disinformation (e.g. via optimization rules, micro-targeting; see e.g. Citizen Browser) and so on. This evidence-based work – such as the recent WSJ Facebook files – critically depends on access to platform data. Yet, whereas the amount of platforms’ data is constantly growing, it has become increasingly difficult for researchers to access that data. After a short introduction into the status quo, this blog post looks into the possible solutions to enhance access to platform’ data for research on disinformation: Article 31 of the DSA, the strengthen Code of Practice on Disinformation, Art. 40 GDPR Code of Conduct and a Media Data Space.Continue reading

Sometimes less is more – a critical view on AG Bobek’s Opinion on the seats of EU agencies

On 6 October 2021, Advocate General (AG) Michal Bobek delivered his Opinion in Joined cases C-59/18 and C-182/18 Italy v Council (Siège de l’Agence européenne des médicaments) and Case C‑743/19 Parliament v Council, two challenges of the decisions on the seat of the newly established European Labour Authority (ELA) and the new seat of the European Medicines Agency (EMA). The main conclusion of the AG in his Opinion is that the Court of Justice lacks jurisdiction over the decisions of Member States on the location of the EMA and the ELA. In his view, “as a matter of principle and certainly in view of how the Treaties currently stand, the Court has no jurisdiction under Article 263 TFEU over decisions taken by the representatives of the Member States” (para 82). The AG’s Opinion, however, also reveals an incorrect interpretation of the scope of Article 341 TFEU.

Article 341 TFEU provides that: “The seat of the institutions of the Union shall be determined by common accord of the governments of the Member States.” It is understood that due to their political sensitivity, decisions on the location of EU institutions should be taken unanimously by the Member States. Decisions on the seat of EU agencies can be just as politically sensitive, but are such decisions included in the scope of Article 341?Continue reading

Radical rewriting of Article 22 GDPR on machine decisions in the AI era

Article 22 of the General Data Protection Regulation (Regulation (EU) 2016/679) declares the right not to be subject to automated individual decision-making, in the following terms: 

  1. The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.
  2. Paragraph 1 shall not apply if the decision: (a) is necessary for entering into, or performance of, a contract between the data subject and a data controller; (b) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests; or (c) is based on the data subject’s explicit consent.
  3. In the cases referred to in points (a) and (c) of paragraph 2, the data controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision.
  4. Decisions referred to in paragraph 2 shall not be based on special categories of personal data referred to in Article 9(1), unless point (a) or (g) of Article 9(2) applies and suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests are in place.

Despite the theoretical interest this provision has aroused among legal scholars, it is now in a delicate position. Its ambiguity, lack of clarity and complexity make it difficult to apply. In view of its unhelpfulness, the UK government is now considering minimising its content and the safeguards it contains for the rights of data subjects. In this post, we argue in the opposite direction. Our proposal is to clarify and simplify Article 22 and to strengthen its three pillars: transparency, contestability, accountability. Continue reading

The EU’s AML Package: an examination

Following the Danske Bank scandal, which resulted in more than €200 billion in suspicious transactions passing through the European Union’s financial system unnoticed, the need for a revision of the block’s Anti-Money Laundering (AML) and Countering the Financing of Terrorism (CFT) rules became imperative. In May 2020, the Commission announced its Action Plan, aiming to establish a Union policy on combatting money laundering. Its primary aims were: 

(1) to ensure the effective implementation of the existing EU AML/CFT framework; 

(2) to establish an EU single rulebook on AML/CFT; 

(3) to bring about EU-level AML/CFT supervision; 

(4) to establish a support and cooperation mechanism for FIUs; 

(5) to enforce EU-level criminal law provisions and information exchange; 

(6) to strengthen the international dimension of the EU AML/CFT framework. 

On July 20th, 2021, the Union took a leap forward, with the introduction of its Anti-Money Laundering Package (‘AML Package’). This is a set of legislative proposals which, if adopted, will revolutionise the way the EU addresses money laundering risks. The AML Package consists of two new regulations, a new AML Directive, and the proposal for the revision of an already existing Regulation on the transfer of funds. This article provides a brief overview of the Package’s most important characteristics, accompanied by commentary on certain aspects of the Proposal. Continue reading

Exit, voice and consensus – A legal and political analysis of the emergency brake in EU criminal policy

The evolution of EU criminal justice policy in the last 30 years has been remarkable. From being on the periphery of EU integration at the beginning of the 1990s, Treaty amendments in Maastricht, prolific legislative activity and a strong political commitment by the European Council in Tampere, Hague and Stockholm have helped push criminal justice to the centre stage of EU policy-making. This evolution culminated with the ratification of the Lisbon Treaty where the former pillar system was abolished and the making of EU criminal law was integrated into the traditional ‘Community’ decision-making structure. It is, therefore, widely held that the Lisbon Treaty has transformed EU criminal law from an ‘intergovernmental’ to an essentially ‘supranationalised’ policy field (Peers, 2011). 

The most powerful objection to the ‘communitarisation’ of decision-making is the introduction of an emergency brake in Articles 82(3) and 83(3) TFEU. Those provisions read in identical wording as follows: ‘Where a member of the Council considers that a draft directive … would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended …’ (emphasis added).

The implications of the emergency brake are potentially significant. If Member States threaten to employ the emergency brake, EU action in this area may be seriously compromised (House of Lords, 2008). Notwithstanding the significance of this provision for the direction of EU criminal policy, it has not been subject to comprehensive scholarly scrutiny (Rosin and Kärner, 2018). This blog post intends to make such a contribution by offering a critical analysis of the emergency brake. The first part explores the legal dimension of the emergency brake with a particular focus on how the concept of ‘fundamental aspects of a criminal justice system’ should be construed and enforced. The second part offers a political examination of the emergency brake including a comprehensive qualitative analysis of EU legislation adopted so far in the area of criminal policy.Continue reading

Komstroy: the beginning of the end for the Energy Charter Treaty?

On 2 November 2021, the ACELG will hold a webinar on the ECJ’s decision in Komstroy and the future of the Energy Charter Treaty. Please check the ‘NADE’ section on the ELB for more information.

Earlier this month, the Court of Justice handed down its judgment in Komstroy. The judgment was the latest on the relationship between EU law and international investment law following earlier cases such as Achmea (discussed here) and Opinion 1/17 (discussed here) where the Court demarked the limits under which international investment tribunals can legally operate under EU law. Komstroy added explicitly (and rather predictably) that there is no place for intra-EU arbitration proceedings under the Energy Charter Treaty (ECT), a multilateral agreement to which the EU, its Member States (apart from Italy which withdrew in 2016) and third states are parties. Within the EU such disputes must be resolved by the independent judiciary consisting of the EU and Member State courts and not by external quasi-judicial bodies. Continue reading