The CJEU dismissed the People’s Climate Case as inadmissible: the limit of Plaumann is Plaumann

On 25 March 2021, the Court of Justice of the European Union (CJEU) held that an action for annulment against several EU acts relating to greenhouse gas (GHG) emissions is inadmissible due to the lack of individual concern. The so-called People’s Climate Case, was brought by ten families from Europe, Kenia and Fiji and a Swedish association representing the indigenous Sami youth (Sáminuorra), all particularly affected by climate change. In one of the first climate action against European Union legal acts, the CJEU backed the General Court (GC) order of 2019.

Locus standi is the controversial issue in climate actions. In such actions, either individuals peculiarly affected by climate change or environmental interest groups seek the annulment of legislative acts that, in their opinion, are not far-reaching enough and/or complain about the government’s omissions with regard to measures targeting climate change. The barriers for environmental interest groups are typically very high, as standing for such representative actions is rather exceptional. Dutch law is one of the few exceptions as it gives public interest organisations standing if the public interest they seek to protect is affected (Art. 3:305a Dutch Civil Code) – a situation that resulted in the landmark Urgenda climate action.

Individuals also have a hard time. They typically have to demonstrate a direct relationship between the legal act or state omission and their situation. Time and again there is a hypothetical element to the claim: the damaging effects of climate change have often only just begun, and the true effects will only become apparent later – an event that the plaintiffs would like to avoid. At EU level, direct access to the CJEU for individuals against legislative acts of the Union, in general, has been a much-disputed issue. Admissibility is also the hurdle that most climate actions cannot overcome. Article 263(4) TFEU requires direct and individual concern. While the direct concern could also be disputed, individual concern is the decisive factor, also in the present case. In its (in)famous Plaumann decision, the CJEU has set the barriers for individual concern for natural or legal persons very high: the contested act must affect them “by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee.”

In the present case, the CJEU clarified that the applicants could not rely on a potential fundamental rights infringement to satisfy the Plaumann criteria. The Court was also unwilling to change the Plaumann case law or grant an exception in the specific circumstances at hand.

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Post GDPR EU laws and their GDPR mimesis. DGA, DSA, DMA and the EU regulation of AI

1. GDPR mimesis as the only regulatory method?

EU regulatory work on technology-related fronts has recently spiked. The EU has been extremely busy implementing its European Digital Strategy. Over a short period it has released a draft Digital Governance Act (DGA), a Digital Services Act (DSA), a Digital Markets Act (DMA), while also working on its proposal for AI Regulation. This recent battery of EU acts to regulate technology has provoked our comment, on this blog, on EU law “act-ification”. Now, instead of focusing on the title of these initiatives, we wish to turn our attention to their content, in order to identify a second phenomenon: GDPR mimesis.

EU personal data protection law applies a well-known scheme by now: Building on a specialized, unique set of terms, a set of basic principles and case-specific rights that are monitored by a specialized public agency. In some more detail, “data subjects” (meaning individuals) and “controllers” and “processors” (meaning those doing the processing) interact through “processing” of common or “sensitive” “personal information” (all terms closely, and uniquely, defined in the personal data protection context). This processing needs to be based on a set of special principles (e.g., fair and lawful processing, data minimization, purpose specification etc.). Special rights (e.g., information, access, rectification) need to be observed. All of these interactions are monitored by Data Protection Authorities, specialized state agencies that are established particularly for this purpose and carry out only this task.

Today, the most prominent representative of this scheme is the EU General Data Protection Regulation (the “GDPR”). While the same system is reproduced also in other basic instruments (such as the Law Enforcement Directive and the Regulation on the processing of EU organisations), it is the GDPR that stands out among them, if not for anything else than simply due to its sheer width and breadth of scope: With the exception of specific areas of personal data processing, the GDPR aims at regulating nothing less than any and all personal data processing in Europe.

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Happy birthday ERTA! 50 Years of the Implied External Powers Doctrine in EU Law

1. Introduction

Wednesday 31 March 2021 marks – to the day – the 50th anniversary of the delivery of the ERTA judgment (Case C-22/70, Commission v Council) by the Court of Justice of the European Union – a seminal case in the history of EU law.

On 31 March 1971, in the run-up to Easter, the Court delivered its ERTA ruling that has come to shape a fully-fledged field known as EU external relations law, and the establishment of the implied external powers doctrine, better known as the ERTA doctrine. Within EU law, the existence of ERTA is known to some extent, but half a century after its delivery, the ramifications of the ERTA doctrine are not as well understood as they ought to be beyond the niche field of EU external relations lawyers.

2. An overlooked doctrine of EU law

With due respect to the leading literature on EU law, it collectively under-appreciates how much the case contributed to the EU legal order for its constitutional, internal, and external dimension. More generally, this is striking, as – quoting former judge Allan Rosas – ‘[a]ny meaningful study of the constitutional order of the EU must include the external relations of the Union. In fact, EU external relations law offers one of the best ways of understanding the essential features of the Union legal order in general’. The ERTA judgment, and more specifically, the ERTA doctrine, is just as much an important milestone in the development of the EU legal order as other Court judgments in the earlier years, including judgments like Van Gend en Loos on direct effect, and Costa v ENEL on primacy.

The golden jubilee of ERTA is to be fittingly recalled, and more generally, better deserves to be understood within EU law for a number of reasons. Not only was ERTA the basis for the entire field of EU external relations law, but has been central to the development of internal competence battles to be resolved at the Court of Justice – both between the Member States and EU institutions; and also between the EU institutions themselves. In fact, the ERTA case has the honour of being the first ever case in which the Commission and the Council faced off squarely before the Court over a question of competence, and consequently, has contributed to EU constitutional law in similar form.

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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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