By Maxime Lassalle
The AG’s proportionality test
After these general considerations, the AG starts his proportionality test. In the opinion nine points are considered separately (para. 210). From this analysis, three main elements deserve to be emphasized. Continue reading
By Maxime Lassalle
On 8 September 2016, Advocate General (AG) Mengozzi delivered his much awaited opinion on the agreement between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR). It follows the European Parliament’s resolution seeking an Opinion from the Court of Justice of the European Union (CJEU) on the compatibility of the agreement with the Treaties. Even though the opinion concludes that the agreement has many loopholes, it could disappoint those who were expecting a strong condemnation of PNR schemes as such.
This blogpost intends to present the context of this procedure and the main elements of the AG’s opinion before analysing them. The question of the appropriate legal basis for the agreement, also raised by the Parliament, will not be addressed. However, before turning to the AG’s opinion, we need to briefly sketch the background of the proposed agreement. Continue reading
By Orla Lynskey
Data protection policy, in particular the right to protection of personal data in Article 8 of the EU Charter, has remained firmly within the EU law limelight in recent years. This right played a key role in seminal judgments of the CJEU such as Schecke and Eifert, where for the first time a provision of secondary legislation was annulled for incompatibility with the Charter, and in Digital Rights Ireland (discussed earlier on this blog), where for the first time an entire Directive was annulled on the same grounds. Furthermore, in Google Spain (considered here) this fledgling right was ostensibly given precedence over the more established right to freedom of expression in certain circumstances, leading to a media furore on both sides of the Atlantic. 2015 was no different in this regard as much attention focused on the Court’s judgment in Schrems (discussed here), which invalidated the 15 year old Safe Harbor data sharing agreement between the EU and the US, and on the culmination of four years of negotiation on the new Proposed General Data Protection Regulation in December.
For good or for bad, the EU data protection juggernaut appears unstoppable, leaving in its wake legal instruments that do not meet its strict standards. Yet, in the shadows of these well-documented events, other noteworthy developments occurred. 2015 also saw the Dutch referring court withdraw its preliminary reference in Rease and Wullems, thereby regrettably removing the opportunity for the CJEU to pronounce upon the margin of discretion of national Data Protection Authorities (DPAs) when adopting a de minimis approach to their enforcement strategy to the detriment of individual or small group complainants. The Court did, however, deliver a number of largely overlooked yet significant data protection judgments in 2015. This contribution will focus on two significant cases which the CJEU delivered in the first week of October, immediately prior to the Schrems judgment, in Bara and Weltimmo. These preliminary references allowed the Court to clarify the interpretation of obligations and exemptions under the Data Protection Directive, as well as the Directive’s enforcement in online situations. Continue reading