“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

„You have the right to remain silent” during punitive administrative proceedings, CJEU confirms – Case C‑481/19 DB v. Consob

With its recent judgment of 2 February 2021 the Grand Chamber of the CJEU has for the first time recognised the right to silence of natural persons during administrative investigations concerning insider trading, when their answers may establish their liability for an offence punishable by administrative sanctions of a criminal nature or their criminal liability. Therefore, some early commentators on the case have already rightly labelled it a ‘landmark case’  (see, for example, here and here). The Court has so far only dealt with the issue concerning the right to silence of legal persons in the field of competition law proceedings (see, inter alia, the landmark Orkem case). It follows from this settled CJEU case-law that, while legal persons cannot be compelled by the competent authorities to provide answers which might involve admission of an unlawful anti-competitive conduct, they must provide all necessary information on facts and disclose documents, even if these may be used to establish an anticompetitive conduct against them (see, Orkem case, paras 27, 34, 35, Mannesmannröhren-Werke case, para. 78, SGL Carbon AG case, paras 41-44 and 48 and recent Qualcomm case, para. 143). A broader interpretation of the right to silence for natural persons during administrative market abuse proceedings is now guaranteed by the current CJEU judgment: 

‘The right to silence cannot reasonably be confined to statements of admission of wrongdoing or to remarks which directly incriminate the person questioned, but rather also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person’ (para. 40).

This judgment can have further impact outside of the field of market abuse, affecting all administrative law proceedings leading to the imposition of sanctions of criminal nature (punitive administrative proceedings) and safeguarding a wider EU fundamental rights protection to natural persons. Such a CJEU step should be welcomed not only from the perspective of EU fundamental rights protection, but also as a contribution to a uniform EU legal order, as it aligns with the well-established case-law of the European Court of Human Rights (ECtHR) on the matter, as already suggested by AG Pikamäe in his recent Opinion on the case (for a thorough commentary on the AG Pikamäe Opinion and the relevant ECtHR case-law see, here). This article provides a brief overview of the theoretical foundations of the right to silence and the background to the current CJEU ruling and highlights the most important reasonings of both the referring and ruling court.Continue reading

‘The two-step can’t be the quick step’: The CJEU reaffirms its case law on the European Arrest Warrant and the rule of law backsliding

Despite frustration with Polish legislation increasingly threatening the independence of the Polish judiciary and the political stalemate to act effectively upon it under Article 7 TEU, the CJEU in L and P (Joined Cases C-354/20 PPU and C-412/20 PPU) does not appear to cave in to any pressure. This time  pressure came from the Rechtbank Amsterdam (the ‘Amsterdam Court’) having referred new preliminary references on the tenability of the CJEU’s existing strand of case law (in particular its LM ruling) whereby national courts as executing authorities must perform a ‘two-step test’ before declining to execute a European Arrest Warrant (‘EAW’) issued from within another Member State where the rule of law (especially the independence of the judiciary as protected by Articles 47 Charter and 19 (1) TEU) is under threat.

The two-step test for non-execution of an EAW

This two-pronged test consists of first establishing that there are systematic and generalized deficiencies in the state of the issuing authority as regards the independence of the judicature (step 1) and that there are good grounds to believe that the specific person that is subject to the EAW will indeed suffer a breach of the right to a fair trial, i.e. trial by an independent court of law (step 2). If both steps are completed, the executing authority may exceptionally refuse to surrender the individual under Article 1(3) of Framework Decision 584/2002 on the European Arrest Warrant (‘EAW FD’). This two-step test was first developed in the context of (appalling!) detention circumstances in the case of Aranyosi and Căldăraru (the risk of inhuman or degrading treatment in detention facilities), to be later expanded to the right to a fair trial in cases like LM. This complex two-step approach finds its justification in the sacrosanct duty of mutual recognition, which is the cornerstone of mutual cooperation in judicial matters in the EU. Consequently, the exceptions in the EAW FD (Articles 3 to 5 EAW FD) are considered a closed system. Article 1(3) EAW FD (the human rights provision) is formally no part of these exceptions, unless the Article 7 Procedure against a Member State has been successfully completed (Recital 10 EAW FD). Only if both conditions of the two-step test are met, can the executing court also resort to Article 1(3) EAW FD as a ground for the non-execution of an EAW.

That the first step is easily taken in the case of Poland is beyond discussion. It requires ‘objective, reliable, specific and properly updated evidence’ (Aranyosi and Căldăraru, para. 104) for which executing courts like the Amsterdam Court can draw from the Commission’s reasoned proposal under Article 7(1) TEU (establishing a ‘real risk’ of the breach of a right to a fair trial). Yet, the European Council has not acted upon Article 7(2) TEU (establishing that there is a ‘serious and persistent breach’), let alone Article 7(3) TEU, i.e. the follow-up decision of the Council to suspend certain rights of the Member State under the EAW FD (here in particular the right to expect courts in other Member States to execute EAWs promptly and, in principle, unconditionally) (LM, para. 72). In the context of this stalemate, the second, individualized step remains necessary under the LM strand of case law.

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AG Opinion on Doñana Case (C-559/19): a “watered-down” concept on the prohibition of groundwater deterioration?

On 3 December 2020, the CJEU issued an Advocate General’s Opinion on the Case C-559/19 European Commission v Kingdom of Spain, on the deterioration of the Doñana natural area. This case deals with the interpretation of the Water Framework Directive and Habitats Directive for the protection of groundwater and connected wetlands.

There is considerable concern about a key part of the opinion, regarding the interpretation of the concept of further deterioration of bad quantitative status of groundwater. In this case, water extractions for agriculture exceed groundwater recharge and groundwater levels have been falling for many years, with likely adverse effects on wetlands and connected surface protected areas. The Commission argues that Spain has infringed the Water Framework Directive’s prohibition of deterioration regarding groundwater.

However, the Advocate General finds that where a water body is already of bad quantitative status, neither lowering the level nor excessive abstraction, constitutes further deterioration under the Water Framework Directive. Only an increase in the current overexploitation would meet the definition. A further deterioration within the scope of bad status would require an increase in the current deficit that is, increasing overexploitation.

This interpretation would not be in line with the broad interpretation of deterioration settled by the Court for surface water status and chemical groundwater status in cases C-461/13 and C-535/18. The Court established in those cases that the obligation to prevent deterioration encompasses all changes liable to undermine achievement of the principal objective of the Directive, that is, to preserve and restore good status of all waters. However,  the restrictive interpretation of Case C-559/19 Advocate General’s Opinion could jeopardise the full effectiveness of Water Framework Directive’s prohibition of deterioration for groundwater.

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Regulating freedom of expression on online platforms? Poland’s action to annul Article 17 of the Directive on Copyright in the Digital Single Market Directive

In an action for annulment in relation to Article 17 of the Directive on copyright and related rights in the Digital Single Market (Directive (EU) 790/2019, CDSM Directive), currently pending before the Court of Justice of the European Union (CJEU), the Republic of Poland argues that an obligation for specific online platforms leading them to filter content uploaded by their users by automated means infringes the right to freedom of expression. After the CJEU had rejected indirect challenges to existing copyright rules in C-476/17, Pelham (see here and here), C-516/17, Spiegel Online (see here and here) and C-469/17, Funke Medien (on the AG Opinions of all three cases see here), this action for annulment (C-401/19, Poland v Parliament and Council) constitutes another escalation in the struggle for a balanced European copyright law. The AG’s Opinion is expected in spring 2021.


The CDSM Directive was highly contested and passed the vote in the Council in May 2019 with support from Germany, France (see here) and the UK (which has since then withdrawn from the EU) but with strong opposition from Sweden and Finland, two of the BeNeLux countries (with Belgium abstaining), Italy and Poland. It is the latter that has challenged one of the most contested (and lobbied) provisions of the Directive (for an overview of the substantive provisions of the Directive see here and here). Article 17 (formerly Article 13 in the draft proposal) has been opposed by academics and public interest groups, and has mobilized millions of European citizens to take the streets under the slogan #SaveYourInternet. Leading NGOs led the protests, amongst them European Digital Rights, the Electronic Frontier Foundation, Communia and Creative Commons.

Article 17 aims to address what the content industry has called the ‘value gap’ on the internet, which means that uploads of copyright protected works to online platforms by their users compete with commercial offers (such as Spotify and Netflix) and reduce the revenues of artists and producers (see for an early critique here). In practice, according to rightholders, a ‘value gap’ exits if a protected work (for example a music video or a photograph) is uploaded by a user of an online service without authorization from the owner of the copyright. Benefitting from unauthorized uploads, but in general uploads of any kind, are users, whose experience using an online platform such as Facebook, YouTube and Instagram improves, and the platforms themselves whose business model is based on an ever-increasing amount of shared content, which generates interaction, data and, as a result, advertisement revenue.

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The Configuration of Citizenship in (post-)Covid-19 EU: Thoughts on the EU Citizenship Report 2020

Western thinking tends to be linear; each moment, each chapter of life, each policy or each historical period is allegedly superseded by others thereby leading to the fading of what preceded it. This succession is often accompanied by the (Western) belief in an upward move or in a more advanced dimension. But various crises in Europe and the world in the 21st century, including the pandemic, have shown that reactions, regressions and backsliding are also parts of a historical time. It is often said that Eastern thinking, on the other hand, does not give a definite arrow to time; the later can move in various directions and, when it does, we should not seek to erase losses, traumas and negativities. Instead, it is advisable to make an effort to mark them, observe them and to proceed with a discernment of the threads that connect past and future, persons and groups, societies and polities, loss and memory. In this way, repair gains traction and configuration begins. Repair and configuration, in turn, open the way to healing and to transformation.

In the European Commission’s EU Citizenship Report 2020, which was published on 16 December 2020, I discern elements of both repair and configuration. I say ‘repair’ because the Commission situates the report within the political landscape of Covid-19 and the concomitant restrictions imposed on free movement, and in the context of social movements for climate change, racism and equality, challenges to democracy and the (positive) developments that have taken place since the previous 2017 Citizenship Report. It also contains a strategy of configuration since it sets out priorities and actions (18 actions) to empower and protect EU citizens, thereby acknowledging the impact of externally imposed vulnerabilities in their life worlds.Continue reading