The two judgments of the European Court of Justice in the four cases of Privacy International,La Quadrature du Net and Others,French Data Network and Others and Ordre des Barreaux francophones et germanophone and Others: The Grand Chamber is trying hard to square the circle of data retention

On 6 October 2020, the Grand Chamber of the European Court of Justice rendered two landmark judgments in Privacy International, La Quadrature du Net and Others, French Data Network and Others as well as Ordre des barreaux francophones et germanophone and Others. The Grand Chamber confirmed that EU law precludes national legislation which requires a provider of electronic communications services to carry out the general and indiscriminate transmission or retention of traffic data and location data for the purpose of combating crime in general or of safeguarding national security.In situations where a Member State is facing a serious threat to national security which proves to be genuine and present or foreseeable, such State may however derogate from the obligation to ensure the confidentiality of data relating to electronic communications by requiring, by way of legislative measures, the general and indiscriminate retention of this data for a period which is limited in time to what is strictly necessary but which may be extended if the threat persists.¹ In respect of combating serious crime and preventing serious threats to public security, a Member State may also provide for the targeted retention of this data and its expedited retention. Such an interference with fundamental rights must be accompanied by effective safeguards and be reviewed by a court or by an independent administrative authority. It is likewise open to a Member State to carry out a general and indiscriminate retention of IP addresses assigned to the source of a communication where the retention period is limited to what is strictly necessary or even to carry out a general and indiscriminate retention of data relating to the civil identity of users of means of electronic communication. In the latter case, the retention is not subject to a specific time limit.     

“Schrems II”: The return of the Privacy Shield

On 16 July 2020, the Grand Chamber of the European Court of Justice rendered its landmark judgment in Case C-311/18 Data Protection Commissioner v. Facebook Ireland Ltd and Maximillian Schrems (“Schrems II”). The Grand Chamber invalidated the Commission decision on the adequacy of the data protection provided by the EU-US Privacy Shield. It however considered that the decision of the Commission on standard contractual clauses (“SCCs”) issued by the Commission for the transfer of personal data to processors established in third states was legally valid.The legal effects of the judgment should first be clarified. In addition, it has far-reaching implications for companies which transfer personal data from the EU to the US. The judgment of the Grand Chamber has also far-reaching implications for transfers of personal data from the EU to other third states. Last, it has far-reaching implications for the UK in the context of Brexit.© 2020 Published by Elsevier Ltd. All rights reserved.     

Legislative genesis and judicial death of a directive: The European Court of Justice invalidated the data retention directive (2006/24/EC) thereby creating a sustained period of legal uncertainty about the validity of national laws which enacted it

The Grand Chamber has ruled that the data retention directive was invalid ex tunc since it seriously interfered with the fundamental rights to respect for private life and protection of personal data and exceeded the limits of the principle of proportionality which are provided for in the Charter. The scope and temporal effects of this ruling should be clarified, especially its legal impacts on national laws of Member States which enacted the directive. In addition, the findings of the Grand Chamber on geographical safeguards have far-reaching implications on the retention and storage of personal data in the EU.     

Opinion 1/15 of the Grand Chamber dated 26 July 2017 about the agreement on Passenger Name Record data between the EU and Canada

On 26 July 2017, the Grand Chamber of the European Court of Justice rendered its seminal Opinion 1/15 about the agreement on Passenger Name Record data between the EU and Canada. The Grand Chamber considered that the decision of the Council about the conclusion, on behalf of the Union, of the agreement between the EU and Canada about the transfer and processing of PNR data must be based jointly on Article 16(2) about the protection of personal data and Article 87(2)(a) about police co-operation among member states in criminal matters, but not on Article 82(1)(d) about judicial co-operation in criminal matters in the EU of the Treaty on the Functioning of the EU. The Grand Chamber also considered that the agreement is incompatible with Article 7 on the right to respect for private life, Article 8 on the right to the protection of personal data, Article 21 on non-discrimination and Article 52(1) on the principle of proportionality of the Charter of Fundamental Rights of the EU since it does not preclude the transfer, use and retention of sensitive data. In addition to the requirement to exclude such data, the Grand Chamber listed seven requirements that the agreement must include, specify, limit or guarantee to be compatible with the Charter.The opinion of the Grand Chamber has far-reaching implications for the agreement on PNR data between the EU and Canada. It has also far-reaching implications for international agreements on PNR data between the EU and other third states. Last, it has far-reaching implications for Directive 681 of 27 April 2016 on PNR data.     

A Struggle for Competence: National Security,Surveillance and the Scope of EU Law at the Court of Justice of European Union

In Privacy International and Quadrature Du Net, the Grand Chamber of the CJEU ruled that the e-Privacy Directive generally prevents bulk retention and transmission of traffic and location data, unless Member States can prove serious threats to national security. In such cases, bulk data can be retained during a strictly necessary period, subject to review by a court or independent administrative body. The judgments will impact other data retention and sharing arrangements, such as the PNR, proposed e-Privacy Regulation and e-Evidence package, and adequacy decisions under GDPR, including for post-Brexit UK. The rulings suggest the CJEU's significance in national security, which has been outside of European integration, but has become a ground for political struggle between EU institutions and Member States. While Privacy International unequivocally asserts CJEU's authority in national security and is a victory for data protection, Quadrature Du Net does not oppose indiscriminate data retention in principle and is an ambivalent response to political pressure.     

Control over Personal Data in a Digital Age: Google Spain v AEPD and Mario Costeja Gonzalez

In the Google Spain judgment, the Grand Chamber of the EU Court of Justice determined the circumstances in which a search engine is obliged to remove links to data pertaining to an individual from the results displayed. The Court also considered the material and territorial scope of the EU data protection rules. This note argues that the Court's findings, which have been heavily criticised, are normatively coherent. The broad scope of application of data protection rules and the right of individuals to have their data deleted when certain conditions are fulfilled both play a part in granting individuals effective control over their personal data – an objective of EU data protection law.     

The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.     

Opening up personal data protection: A conceptual controversy

The existence of a fundamental right to the protection of personal data in European Union (EU) law is nowadays undisputed. Established in the EU Charter of Fundamental Rights in 2000, it is increasingly permeating EU secondary law, and is expected to play a key role in the future EU personal data protection landscape. The right's reinforced visibility has rendered manifest the co-existence of two possible and contrasting interpretations as to what it come to mean. If some envision it as a primarily permissive right, enabling the processing of such data under certain conditions, others picture it as having a prohibitive nature, implying that any processing of data is a limitation of the right, be it legitimate or illegitimate. This paper investigates existing tensions between different understandings of the right to the protection of personal data, and explores the assumptions and conceptual legacies underlying both approaches. It traces their historical lineages, and, focusing on the right to personal data protection as established by the EU Charter, analyses the different arguments that can ground contrasted readings of its Article 8. It also reviews the conceptualisations of personal data protection as present in the literature, and finally contrasts all these perspectives with the construal of the right by the EU Court of Justice.     

Minimum resale price maintenance in EU in the aftermath of the US Leegin decision

Leegin decision of the Supreme Court in 2007 affirmed that minimum RPM was to be evaluated under the rule of reason henceforth. Conversely, minimum RPM retains its position as a hard-core restraint in EU’s BER 2010 and the De Minimis Notice. The limited amount of case law reveal that in the absence of certain factors, such as significant market power of the parties, minimum RPM is unlikely to result in the detriment of consumers. Consequently, despite the retention of the maintenance of the single market as a significant aim in EU competition policy, minimum RPM practices are entitled to a more lenient approach, if the ultimate aim is to attain consumer welfare as stated by the Commission and through most judgments of the Court of Justice of the European Union.     

CASES: European Arrest Warrant Cases and the Principles of Non‐discrimination and EU Citizenship

This case comment provides an analysis of the recent judgment in Wolzenburg (C‐123/08), delivered on 6 October 2009 not yet reported (Grand chamber) concerning the application of the EU principles of nondiscrimination and citizenship to the European Arrest Warrant cases. It also considers the impact of the Lisbon Treaty as well as the implications of the Citizenship Directive 2004/38/EC for this area of law.     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

Human Dignity in the EU Charter of Fundamental Rights and its Interpretation Before the European Court of Justice

This article argues that the EU Charter’s dignity provisions must be given a specific, expansive European meaning that underpins the importance the EU places on fundamental rights protection as a principle EU value. To this end, the article examines the EU Charter provisions on dignity and critically analyses the case law before the EU Charter had full legal effect and after it did. It finishes with looking at three areas in which the potential for an expansive interpretation of dignity could help bring the EU closer to its people and fully respect and protect dignity: asylum, criminal justice and sexual orientation.     

The uncertain future of data retention laws in the EU: Is a legislative reset possible?

The article discusses the CJEU's most important case law, including interpretations presented in recent cases relating to data retention for both national security purposes (Privacy International, La Quadrature du Net) and the fight against serious crime (H.K). The analysis is a starting point for discussing the draft e-Privacy Regulation, in particular a controversial proposal introduced by the EU Council that may limit the Court's jurisdiction in cases involving data retention rules that cover state security.Negotiated over the past five years, the draft e-Privacy Regulation fleshes out EU data protection rules governing electronic communication services. As a result, the way in which obligations under the Regulation are defined is critical in setting a standard for retention rules consistent with CJEU case law for decades to come. At the same time, succumbing to pressure from Member States may have the opposite result – the emergence of new ambiguities concerning not only the admissibility of data retention but also the competence of EU institutions to regulate this area of the telecommunications sector.     

Law enforcement access to personal data originally collected by private parties: Missing data subjects' safeguards in directive 2016/680?

Access by law enforcement authorities to personal data initially collected by private parties for commercial or operational purposes is very common, as shown by the transparency reports of new technology companies on law enforcement requests. From a data protection perspective, the scenario of law enforcement access is not necessarily well taken into account. The adoption of the new data protection framework offers the opportunity to assess whether the new ‘police’ Directive, which regulates the processing of personal data for law enforcement purposes, offers sufficient safeguards to individuals. To make this assessment, provisions contained in Directive 2016/680 are tested against the standards established by the ECJ in Digital Rights Ireland and Tele2 Sverige on the retention of data and their further access and use by police authorities. The analysis reveals that Directive 2016/680 does not contain the safeguards identified in the case law. The paper further assesses the role and efficiency of the principle of purpose limitation as a safeguard against repurposing in a law enforcement context. Last, solutions to overcome the shortcomings of Directive 2016/680 are examined in conclusion.     

Reform from within: the Grendon example

In Salduz v Turkey (27 November 2008, No. 36391/02), the Grand Chamber of the European Court of Human Rights (ECtHR) stated:

...in order for the right to a fair trial to remain sufficiently ‘practical and effective’… Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right…The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.     

Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?

In Animal Defenders International v United Kingdom a majority of the Grand Chamber of the European Court of Human Rights held that the UK's statutory broadcasting ban on political advertisements under the Communications Act 2003 did not breach the right to freedom of expression under Article 10 of the European Convention on Human Rights. The judgment departs from the Court's established case law and, it is argued, raises several issues of concern both with regard to freedom of expression, and for human rights adjudication more generally. In particular, the Court's use of a doctrine of ‘general measures’ led it to place a great deal of reliance on the quality and quantity of legislative debate that preceded the UK ban, rather than its actual impact upon the applicant.     

O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education

In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non‐state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.     

Law of Denial

Law’s claim of mastery over past political violence is frequently undermined by reversals of that relationship of mastery, so that the violence of the law, and especially its symbolic violence, becomes easily incorporated into longues durées of political violence, rather than mastering them, settling them, or providing closure. Doing justice to the past, therefore, requires a political and theoretical attunement to the ways in which law, in purportedly attempting to address past political violence, inscribes itself into contemporary contexts of violence. While this may be limited to an analysis of how law is an effect of and affects the political, theoretically this attunement can be further refined by means of a critique of dynamics that are internal to law itself and that have to do with how law understands its own historicity, as well as its relationship to history and historiography. This article aims to pursue such a critique, taking as its immediate focus the ECHR case of Perinçek v Switzerland, with occasional forays into debates around the criminalisation of Armenian genocide denialism in France. The Perinçek case concerned Switzerland’s criminalisation of the denial of the Armenian genocide, and concluded in 2015 after producing two judgments, first by the Second Chamber, and then by the Grand Chamber of the ECHR. However, although they both found for the applicant, the two benches had very different lines of reasoning, and notably different conceptions regarding the relationship between law and history. I proceed by tracing the shifting status of ‘history’ and ‘historians’ in these two judgments, and paying attention to the deferrals, disclaimers and ellipses that structure law’s relation to history. This close reading offers the opportunity for a critical reappraisal of the relationship between law, denial and violence: I propose that the symbolic violence of the law operative in memory laws is a product of that which remains unresolved in law’s understanding of historicity (including its own), its self-understanding vis-à-vis the task of historiography, and its inability to respond to historical violence without inscribing itself into a history of violence, a process regarding which it remains in denial.

     

Lessons from Roman law: EU law in England and Wales after Brexit

ABSTRACT

The experience of Roman law in legal education in England and Wales may serve as a cautionary tale for EU law post-Brexit. Similarly, past debates as to the position of Roman law in the curriculum may also be instructive in the EU law context. After tracing the history of the teaching of Roman law in England and Wales, this article posits first that the factors that appear to have caused the decline of Roman law could apply equally in the context of EU law. Secondly, based on both pragmatic and liberal education arguments that have historically been proffered for the study of Roman law, it advances arguments for the retention of a compulsory stand-alone EU law module in England and Wales after Brexit. To this end, the paper contends that the arguments for the retention of EU law in legal education are more robust than those asserted traditionally in favour of Roman law.     

Extraterritorial laws for cross-border reproductive care: the issue of legal diversity

Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States' legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the E.U.'s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.