The Scope of Article 12 of the Treaty of the European Communities vis‐à‐vis Third‐Country Nationals: Evolution at Last?

This article will critically examine the traditional interpretation of Article 12 EC—prohibiting discrimination on the basis of nationality—as not applying to third country nationals (TCNs). Different arguments, both for and against this 'classic' interpretation, will be considered. Analysing the question of the 'scope of application of the EC Treaty', with a view to determining the scope of application of Article 12 EC, it will be emphasised that this is not restricted to the right of free movement, in that the latter's restricted personal scope of application does not determine that of Article 12 EC. This is all the more true following the Treaty of Amsterdam's partial 'Communitarisation' of policies on visas, asylum and immigration, which tend to apply principally to TCNs. In extending the material scope of application of the EC Treaty, this 'Communitarisation' simultaneously leads to an extension of the specific scope of application of Article 12 EC. Working from the hypothesis that Article 12 EC could indeed apply to TCNs, we will then examine the eventual consequences of such an application.     

Civic Citizenship Reintroduced? The Long‐Term Residence Directive as a Post‐National Form of Membership

This paper presents how the Long‐Term Residence Directive has created a status that can be considered as a subsidiary form of EU citizenship. This key revolution has been operated by EU law since this status escapes direct control by Member States that are obliged to grant EU long‐term residence and the rights associated with it to third‐country nationals (TCNs) fulfilling the conditions in the Directive. This represents a fundamental development and may be distinguished from the acquisition by TCNs of national/EU citizenship, which constitutes a prerogative of State sovereignty. Indeed, the recent cases by the Court of Justice analysed below confirm this truly post‐national form of membership and have profound implications for the relationship between borders, territory and population in the EU.     

The Employment Equality (Age) Regulations 2006: A Legitimisation of Age Discrimination in Employment

The Employment Equality (Age) Regulations, which implement theFramework Directive on Equal Treatment and Occupation, takeeffect in October 2006. Tackling age discrimination is seento be a means of achieving a more diverse workforce, yet intrying to achieve this objective there have been compromiseswith the principle of non-discrimination. During the consultationexercises preceding the Regulations there have been importantdifferences of approach between employers and trade unions.The Government has, mostly, adopted the approach supported byemployers. The result is a set of Regulations, which, althoughan important step forward in tackling age discrimination, havenumbers of exceptions which effectively legitimise some aspectsof age discrimination at work.     

Age Discrimination Law in a Country with a Communist History: The Example of Poland

Abstract:  This article offers an overview of the legal responses to age discrimination in Poland. It explores the system of legal protection before the accession of Poland to the European Union, and looks too at the situation after the implementation of Council Directive 2000/78/EC. It argues that Community law has enhanced protection against age discrimination significantly, but that legislation remains far from perfect, and that the effective eradication of this form of discrimination in Poland is impeded by a range of difficulties typically found in countries with a Communist past.     

Investigating the legal protection of data,information and knowledge under the EU data protection regime

Information science distinguishes between the semantic forms/intangibles of data, information and knowledge. Data (e.g. an attribute of a data record in a relational database) does not have any meaning by itself. Information is data brought into context (e.g. data related to its primary key), and knowledge is the collection of information for useful intent (e.g. a database). This paper investigates the mapping of semantic forms in information science (i.e. data, information, knowledge) to correlative concepts in information law (primarily data protection legislation) with a view to investigating how such semantic forms are legally protected. The paper first proposes a data, information, knowledge, rules (DIKR) hierarchy in the context of relational database theory, and interprets this hierarchy with respect to data protection concepts. The paper then gives an in-depth discussion of the elements of the DIKR hierarchy (data, information, knowledge, deduced knowledge, induced knowledge) and how they relate to the EU Data Protection Directive 95/46/EC. These relationships are summarized in the form of a two dimensional correlation matrix. Finally the paper discusses how the semantic forms identified are protected under the EU Data Protection Directive, and gives insightful observations about the connection between information law and information science.     

'We want you! But . . .' Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.     

The Future of Consumer Web Data: A European/US Perspective

The article considers the subject of clickstream data from aEuropean/US perspective, taking into account the Data ProtectionFramework (Data Protection Directive 95/46/EC; Directive onPrivacy and Electronic Communications 2002/58/EC) and the USlegal framework and in particular, the Wiretap Act U.S.C. 2701(2004) and related statutes. It examines the extent to whichclickstream data is considered "personal data" within the DataProtection Directive and the implications to consumers and businesses.     

Preventing discrimination in the automated targeting of job advertisements

On the background of the increasing amount of discriminatory challenges facing artificial intelligence applications, this paper examines the requirements that are needed to comply with European non-discrimination law to prevent discrimination in the automated online job advertising business. This paper explains under which circumstance the automated targeting of job advertisements can amount to direct or indirect discrimination. The paper concludes with technical recommendations to dismantle the dangers of automated job advertising. Various options like influencing the pre-processing of big data and altering the algorithmic models are evaluated. This paper also examines the possibilities of using techniques like data mining and machine learning to actively battle direct and indirect discrimination. The European non-discrimination directives 2000/43/EC, 2000/78/EC, and 2006/54/EC which prohibit direct and indirect discrimination in the field of employment on the grounds of race or ethnic origin, sex, sexual orientation, religious belief, age and disability are used as a legal framework.     

From International Ethics to European Union Policy: A Case Study on Biopiracy in the EU's Biotechnology Directive

This article explores how the question of biopiracy, and the rights of indigenous people in the context of patents over natural resources related to traditional knowledge became articulated within the European Union's law and policy process. It presents how this issue was first introduced into the EU during the negotiation on the Directive 98/44/EC, and which mechanisms transformed this ethical issue into a policy concern. Analyzing the history of this issue within that of Directive 98/44/EC offers significant opportunities for testing the appropriateness of multilevel governance and policy-network theories to empirical sociolegal research in the EU context.     

Caring for the Disabled? New Boundaries in Disability Discrimination

The scope of the disability-related less favourable treatment provisions of the Disability Discrimination Act 1995 has been reduced by the House of Lords in a housing case, London Borough of Lewisham v Malcolm , while the European Court of Justice has taken a broad approach to disability discrimination and carers within the EC Framework Directive in Coleman v Attridge Law . In discussing both cases, this note suggests that the pre- Malcolm approach to identifying the comparator in disability-related discrimination claims should prevail in the employment context, in view of the obligations under the EC Framework Directive.     

Free Movement of Third Country Nationals in the European Union? Main Features,Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom,Security and Justice

The adoption of European Community (EC) Directives in the field of legal migration has been accompanied by the introduction of intra-community mobility rights. This new kind of right is characterised by specific features with regard to free movement rights enjoyed by European Union (EU) citizens. Besides, existing mobility rights for third country nationals (TCNs) raise some important problems with regard to their legal configuration and to their relationship with other fields of Community law. After having addressed these issues, it will be argued that the current regulation of mobility rights for TCNs does not fulfil the requirements of systematic coherence, and does no meet the need to grant a level of free movement that encompasses the evolution of harmonisation in the field of the Area of Freedom, Security and Justice.     

Data protection: The future of privacy

The Art. 29 Working Party (hereinafter “Art. 29 WP”) is an influential body comprised of representatives from the Member State Data Protection Authorities² established under the Data Protection Directive 95/46/EC, has recently issued an opinion with the Working Party on Police and Justice. This is quite significant, since the opinion sets out some of the issues that will need to be addressed in the lead up to the revision of the Data Protection Directive 95/46/EC.³ This comes at a time, when there have been discussions on the current application of the European Data Protection Directive to the internet,⁴ (such as social networking) and the recent European Commission’s consultation on the legal framework for the fundamental right to protection of personal data. Not least, there have been a number of cases brought before the European Court of Justice dealing with the partial implementation of the Data Protection Directive 95/46/EC.⁵The aim of this paper is to consider in detail the issues set out by the Art. 29 WP and the likely challenges in revising the Data Protection Directive 95/46/EC.     

欧盟对分时度假及相关产品的法律规制

欧盟主要通过《分时度假指令》和《不正当商业做法指令》对分时度假产业进行法律规制,《分时度假指令》赋予消费者对购买分时度假产品合同的撤销权,《不正当商业做法指令》则禁止销售商在销售分时度假产品及相关产品时的不正当商业做法。由于《分时度假指令》的适用范围过于狭窄,欧盟已提出了对其的修改建议。总结欧盟规制分时度假产业的经验,我国应对分时度假产业进行法律规制并结合行业自治。     

EU Equality Law: Three Recent Developments

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case law of the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.     

Legal grounds to process personal data under Spanish legislation after the ECJ Judgment of 24 November 2011 (the ASNEF and FECEMD case)

Spanish law on personal data protection regulates (among other issues) the legal bases that permit the processing of data in a way that is similar to that set out in Directive 95/46/EC. Consent constitutes the general rule although data may be processed without it if necessary for administration functions, within the framework of a contractual relationship, in order to safeguard the vital interests of the data subject or if they are included in sources accessible to the public. However, unlike the Directive, legitimate interest is not recognised as an independent reason for processing data, whereas a legal ground that is not set out in community law is included, i.e., sources accessible to the public. This paper analyses these two cases, taking as its starting point consent, along with the consequences that the ECJ Judgment of 24 November 2011 regarding the interpretation of Article 7 of Directive 95/46/EC may have and giving attention to the revision of this Directive itself.     

European Union Citizenship: Writing the Future

Abstract:  EU citizenship has matured as an institution, owing to a number of important interventions by the European Court of Justice and legislative initiatives, such as the Citizenship Directive 2004/38/EC, which has recently entered into force. In this article, I critically examine minimalist and cosmopolitan conceptions of European citizenship and argue that once we dispense with the preoccupation of assigning primacy to a specific level of citizenship and establishing some kind of hierarchy among them, we can begin to address the questions and issues that really matter. Among these are the future governance of citizenship and the design of a more inclusive, multilayered and multicultural conception of citizenship. European citizenship entails a number of fruitful ideas for a more ambitious transition to a post-national tableau and can be the prototype for institutional experimentation on citizenship on a global scale.     

The implementation of Directive 2001/20/EC into Belgian law and the specific provisions on pediatric research

The European Clinical Trial Directive (2001/20/EC) was implemented into the Belgian legal system by the Law of 7 May 2004 concerning experiments on the human person (LEH). Apart from implementing the European Directive, this law also broadens the scope of the Directive from interventional clinical trials to all medical experiments involving human persons. This article offers an overview of the requirements for involving minors in medical experiments that are captured in the LEH, illustrates the process of protocol review by an ethics committee, and discusses the dissimilarities between the LEH and the European Directive.     

Law reform in the UK

This article reports on several developments in 2003: the implementation of the European Communities Framework Employment Directive, the introduction of a private member's Equality Bill, and the publication of the National AIDS Trust's report on UK anti-discrimination law.     

The Data Protection (Amendment) Act, 2003: the Data Protection Directive and its implications for medical research in Ireland

Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data has been transposed into national law and is now the Data Protection (Amendment) Act, 2003. The Directive and the transposing Act provide for new obligations to those processing data. The new obligation of primary concern is the necessity to obtain consent prior to the processing of data (Article 7, Directive 95/46/EC). This has caused much concern especially in relation to 'secondary data' or 'archived data'. There exist, what seem to be in the minds of the medical research community, two competing interests: (i) that of the need to obtain consent prior to processing data and (ii) the need to protect and foster medical research. At the same time as the introduction of the Act, other prior legislation, i.e. the Freedom of Information Act, 1997-2003, has encouraged candour within the doctor-patient relationship and the High Court in Ireland, in the case of Geoghegan v. Harris, has promulgated the 'reasonable-patient test' as being the correct law in relation to the disclosure of risks to patients. The court stated that doctors have a duty to disclose all material risks to patients. The case demonstrates an example of a move toward a more open medical relationship. An example of this rationale was also recently seen in the United Kingdom in the House of Lords decision in Chester v. Afshar. Within the medical research community in Ireland, the need to respect the autonomy of patients and research participants by providing information to such parties has also been observed (Sheikh A. A., 2000 and Irish Council for Bioethics, 2005). Disquiet has been expressed in Ireland and other jurisdictions by the medical research communities in relation to the exact working and meaning of the Directive and therefore the transposing Acts (Strobl et al). This may be due to the fact that, as observed by Beyleveld "The Directive makes no specific mention of medical research and, consequently, it contains no provisions for medical research as an explicitly delineated category." (Beyleveld D., 2004) This paper examines the Irish Act and discusses whether the concerns expressed are well-founded and if the Act is open to interpretation such that it would not hamper medical research and public health work.     

An Analysis of the Transfer of Undertakings (Protection of Employment) Regulations 2006

This article analyses the Transfer of Undertakings (Protectionof Employment) (TUPE) Regulations 2006, which revoke, entirely,the TUPE Regulations 1981. As well as comprising the UK Government’sresponse to the amending Acquired Rights Directive 1998/50/EC,they purport to fulfil a four-fold aim of increasing the coverageof TUPE in outsourcing situations; clarifying the law on transferconnected dismissals and when employees may agree transfer relatedchanges to employment conditions; providing for the supply bytransferors of employee liability information; and relaxingthe provisions of TUPE in insolvency situations to the extentpermitted by the Acquired Rights Directive 2001/23/EC. It isto be argued that some of these aims are realised in the newRegulations, and others not. And certain areas worthy of newregulation are ignored. What is ultimately apparent howeveris that the new Regulations cannot be taken to be an ‘employers’charter’. In some instances the new Regulations may breathenew life (and litigation) into the law.