The Dovera-saga: Peace of mind for solidarity or cold feet for EU competition law?

Last summer’s CJEU judgment in Case C-262/18 P Dovera Zdravotna Poist’ovna has gone by quite unnoticed with only a few mentions and annotations in the usual blogs and journals. However, this judgment – which concerned a State aid question in the context of Slovakian supplementary health insurance – is significant for the interaction of EU competition law (specifically State aid law) with social protection and social security law.Continue reading

Stand-by duties in the Working Time Directive: Window-dressing workers’ rights?

Showcasing respect for workers’ rights has become a popular advertising strategy. Amazon, for instance, gloated over the heroism of its employees, glossing over the fact that the company’s revenue has skyrocketed during the pandemic. Strikingly, the Court of Justice’s (CJEU) recent judgments in Radiotelevizija Slovenija and Stadt Offenbach am Main mark a similar approach: on the one hand, the Court enunciated the significance of workers’ rights in Union law in the context of the qualification of stand-by duties as ‘working time’ for the purpose of the Working Time Directive. On the other hand, a close examination of these judgments reveals that the Court’s reasoning weakens the position of workers in practice. Whereas the final decision on these matters is delegated to national courts, the CJEU’s guidance in this regard is likely to play out to the detriment of workers.

Accordingly, this blog post discusses the repercussions that these recent judgments create for workers. Has the Court turned away from its firm support of workers’ rights in earlier case law to mere lip service? To answer this question, the post proceeds in four steps. It briefly presents the factual background of the litigations (1.), then illustrates the deferential solution adopted by the Court (2.) and analyses the guidance given to national courts in this respect (3.). Against that background, it will be concluded that the Court has adopted guidance that restricts workers’ rights, even though this may be concealed by decorative language (4.). Since the Court’s responses in both cases are drafted, for the most part, in identical terms, they will be rolled into one for the purpose of the following analysis. In this respect, references will be made to the first of the two judgments, namely to C-344/19 Radiotelevizija Slovenija, unless indicated otherwise.

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Watering down the Aarhus Regulation – time to deliver an ‘adequate and effective remedy’

In October last year the Commission presented a proposal to revise the Aarhus Regulation implementing the Aarhus Convention in the EU. Earlier blog posts have discussed the frailties of the Commission’s current plans and argued that the EU reaction is ‘too little, too late’ to counter the Aarhus Convention Compliance Committee (ACCC) finding that the EU is not in compliance with its obligations on access to justice under Articles 9(3) and 9(4) of the Convention.

We agree and believe that the problems are broader than what has been so far been discussed. We reflect on the proposal against some more recent developments and emphasizing the importance of certain aspects that, in our understanding, are yet underrecognized and that may, if passed in the proposed form, result in watering down the otherwise positive development the proposal entails.

The Commission’s proposal has dual goals. First, it aims to advance the delivery of the EU Green Deal and second, to secure the EU’s compliance with the Aarhus Convention.

We discuss the Commission proposal from three angles: the suggested exclusion of provisions that require national implementing measures, the question of prohibitive costs in preventing access to justice in the EU and the possible positive developments in light of the EU’s reluctance in embracing the Convention in full. 

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EU-UK Surrender Agreement: A Copy of the EU-Iceland and Norway One?

Since Brexit, more precisely since 31 December 2020, the European Arrest Warrant (EAW) system no longer applies between the EU and the UK (also see Chloé Brière). Instead, a new surrender arrangement incorporated into the EU-UK Trade and Cooperation Agreement (also see Mark Konstantinidis and Vasiliki Poula) has been established. The EU-UK Trade and Cooperation Agreement originally entered into provisional application until the end of February, but on 23 February 2021, the EU-UK Partnership Council decided to extend the provisional application to 30 April 2021, to allow sufficient time for the Agreement to be translated into all the EU official languages and to enable ratification by the European Parliament. By the date of or at the latest two months after entry into force and provisional application of the Trade Agreement, the EU and UK shall make notifications relating to the application of “political offence exception”, “national exception” and “consent to surrender”, the EAW could still be used provided the process was initiated before the end of the transition period. The change from the EAW system to the new Surrender Agreement is important for both the UK and the EU. Yet it is not the first time that the EU has concluded a surrender arrangement with a close non-EU partner. Since the introduction of the EAW Framework Decision (EAW FD) in 2002, the EU also concluded the Surrender Agreement with Iceland and Norway (EU-Iceland and Norway Surrender Agreement) based on the EAW and which entered into force on 1 November 2019. The EU-UK surrender arrangement, besides being inspired by the EAW, also takes much from the EU-Iceland and Norway Surrender Agreement.

It is evident that efficiency and simplicity are emphasized both in the EU-UK surrender arrangement and the EU-Iceland and Norway Surrender Agreement. However, there are differences between the two, and these differences show that the EU-UK surrender arrangement has included some improvements based on the lessons learned from the EU-Iceland and Norway Surrender Agreement as well as the EAW system, and that some compromises have also been made in light of the actual political and legal relationship between the EU and the UK. The details can be analysed from the below four factors.Continue reading

Critical notes on ‘platformised’ education: untangling privacy and data protection in postpandemic universities

The widespread use of online technologies across European Higher Education Institutions (HEIs) is shaking the foundations of our education system.

The COVID-19 pandemic has triggered disruptive transformations in education practices, destined to outlive emergency times as consolidated digital teaching and learning. Exploiting new online means and interacting with new stakeholders (e.g. online platforms) has now become a common feature in education. This new reality carries opportunities, but also significant risks for the protection of fundamental rights and freedoms, structurally embedded in education.

The data protection implications resulting from the ‘platformisation’ of education are attracting the attention of all involved actors (HEIs, teachers, students, platforms) and, lately, of policymakers. The implications concerning the way personal data collected through these educational practices are governed, processed and shared, remains a largely unexplored issue. It is against this background that we recently conducted a study in which we aimed to shed light into this new problematique. We identified main data protection gaps for data subjects (students and teachers) and the critical challenges universities should consider when relying on third-party service providers, namely: 1) allocation of roles and responsibilities of the actors involved; 2) the definition of legal bases and purposes of the processing, its transparency and possibility to effectively exercise data subjects’ rights; 3) extra-EU data transfers after Schrems II; as well as 4) e-proctoring systems. In this blog post we aim to shortly summarize our findings and conclude by proposing policy recommendations to overcome the identified critical points.

We essentially argue that the implementation of the right to privacy and data protection in the Emergency Remote Teaching (ERT) environment is not merely an issue of compliance, but a substantial measure that universities shall ensure. Data protection rules are conceived as a core facilitator for the building of the European digital education ecosystem. Ultimately, our study assumes that tomorrow’s high quality, open, and inclusive education will be based on today’s careful analysis and responsible data protection choices in the emerging digital education environment.

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“Trial by Mathematics” and the EU’s Subsidiary Protection Regime – A “strategic” preliminary reference pending before the CJEU in Case C‑901/19

Subsidiary protection from the violence of armed conflict under the EU’s Qualification Directive (QD) has gained considerable importance in national asylum systems (I.). Based on a 2011 judgment of the German Federal Administrative Court (FAC), national courts in Germany have regularly denied such subsidiary protection after an entirely quantitative assessment because they calculated the risk to be killed or injured in the country of origin to be lower than 0.125% (II.).

In 2019, the Higher Administrative Court of Mannheim made a preliminary reference to the CJEU directed against this FAC jurisprudence (Case C‑901/19), which is currently pending before the Court of Justice. In a surprising response to the preliminary reference, the FAC issued a judgment in May 2020, in which it sought to clarify that its jurisprudence had actually never established a “quantitative minimum threshold” for the determination of subsidiary protection. This clarification, which arguably overrules the 2011 judgment, is remarkable as lower courts and legal commentators had for years unanimously seen precisely such a threshold in the FAC’s case law. The Mannheim court’s reference and the FAC’s answer could be considered “strategic” and are therefore relevant not only for the EU asylum system but also, more generally, for the structure of the preliminary reference mechanism before the Court of Justice (III.).

The German Government seems to have argued that the reference made by the Mannheim court is now moot because of the FAC’s clarification. But an interpretation of EU law by the CJEU in response to the reference remains highly necessary. The Advocate General in his Opinion of 11 February 2021 has already affirmed that the reference continues to be relevant. But there is another reason why the Court of Justice should rule on this reference: German courts could and do largely continue this practice even after the FAC’s clarification (IV.). Owing to this uncertainty in the German case law, and to rule out any misunderstandings, the Court of Justice should rule that any determination of subsidiary protection status that solely relies on quantitative factors is incompatible with the Qualification Directive (V.).

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Data protection clashes with data sharing: How will the EU reconcile its two aims?

The tide is turning: personal data protection has become yesterday’s news. The EU is now looking into the regulation of data sharing. The General Data Protection Regulation (GDPR), which became applicable in May 2018, is arguably the most influential legal instrument governing our digital lives. The Regulation has provided individuals with new and enhanced protection of informational privacy. By requiring companies and public authorities alike to process data according to specific rules and principles, it has had a major impact on digital markets as well as governmental practices. Enhanced by the case law of the European Court of Justice, the Regulation has also become effective in practice. 

However, the EU has recently started to explore new ways of regulating data. The focus is now shifting towards opening up data flows to ensure a functioning digital market. Innovation is key and data is the material from which it is forged. The EU aims to compete on the global digital market by regulating how data can be used and re-used. These new endeavours are not easy to reconcile with data protection rules in the GDPR, which seek to protect fundamental rights to privacy in digital economies. Continue reading

Private Involvement in Autonomous Decision-Making Exercising Public Tasks and the Good Administration: a need for further research

The use of algorithms by public administration is nothing new on the horizon. In 2019, Algorithm Watch started the project ‘Automating Society’, which has resulted in two annual reports mapping the usage of ADM operations by Member States throughout the European Union (EU). These public ADM processes are now widely spread. In social care they flag young adults at risk for social exclusion and identify associated risks (Eksote, Finland). In taxes they rank ‘risky’ citizens who may evade taxes (fraud detection, Slovenia), and in health care they monitor children’s growth and signal disparities that may be the consequence of diseases or child abuse potentially resulting in removing children from their families (Growth Watch, the Netherlands). Even the EU has acknowledged the potential of ADM procedures and established the European Travel Information and Authorisation System, which issues a travel authorisation to non-European citizens without a visa obligation to travel to the Schengen Member States. Applicants fill in an online application, after which the system will either issue the travel authorisation or determine that further examination is required. Another example includes iBorderCtrl, a lie detection system that screened third country nationals at the borders of the EU. An avatar conducted interviews with these citizens – and when necessary marked them as potentially lying – during a pre-screening. The EU ceased using iBorderCtrl in 2019.

Despite the potential of increasing involvement of private parties in ADM systems performing public tasks, such involvement equally bears the risk to negatively affect the duty to state reasons and the right to be heard under the right to good administration of Article 41 Charter of Fundamental Rights of the European Union (EU Charter). It is in this light that this blog post will firstly discuss the involvement of private parties in ADM systems executing public tasks. Secondly, it outlines the legal framework of the right to good administration under the EU Charter and the European Convention on Human Rights (ECHR). This right is embedded in Article 41 EU Charter, which correlates to Article 6(1) ECHR. As a result, the degree of protection of this corresponding right may not fall below the protection provided by the ECHR. Lastly, the post assesses potential violations due to the private involvement in ADM operations carrying out public tasks. Continue reading