Editorial of September 2019

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 by Alessandra Silveira, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

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Google v. CNIL: Is a new landmark judgment for personal data protection on the horizon?

1. In the 2014 landmark Judgment Google Spain (C-131/12), the Court of Justice of the European Union (hereinafter, “ECJ”) was called upon to answer the question of whether data subjects had the right to request that some (or all) search results referring to them are suppressed from a search engine’s results. In its decision, the ECJ clarified that search engines engage in data processing activities and recognised the data subject’s right to have certain results suppressed from the results (even if maintained on the original webpage).

2. This right encountered its legal basis on Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter, “Directive 95/46”) jointly with Articles 7 (respect for private and family life) and 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union (hereinafter, “Charter”). In accordance with the Court’s decision, it can be exercised against search engines acting as data controllers (Google, Bing, Ask, amongst others) and does not depend on effective harm having befallen the data subject due to the inclusion of personal data in the search engine’s results. Data subject’s rights should override the economic rights of the data controller and the public’s interest in having access to the abovementioned information unless a pressing public interest in having access to the information is present.

3. Google Spain offered some clarity on a number of extremely relevant aspects such as: i) the [existence of] processing of personal data by search engines; ii) their status as data controllers under EU law; iii) the applicability of the EU’s data protection rules even if the undertaking is not headquartered in the Union; iv) the obligation of a search engine to suppress certain results containing personal data at the request of the data subject; v) the extension, range and (material) limits to the data subjects’ rights. The natural conclusion to arrive is that Google Spain granted European citizens the right to no longer be linked by name to a list of results displayed following a search made on the basis of said name.

4. What the judgment did not clarify, however, is the territorial scope of the right (i.e. where in the world does the connection have to be suppressed?). Is it a global obligation? European-wide? Only within the territory of a specific Member State? In 2018, the European Data Protection Board (hereinafter, “EDPB”) issued Guidelines on the territorial scope of the GDPR, but their focus is Article 3 of the legal instrument and therefore they offer no clarity on this issue (even if they did, they would not bind the ECJ).
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Religious freedom, equal treatment in employment and occupation and case C-193/17 (22 January 2019)

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 by Maria João Lourenço, Assistant lecturer at UMinho

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The phenomenon of globalization, contrary to expectations, has made cultural diversity and pluralism even more evident[i]. Because of multiculturalism, States are confronted with an increasing number of conflicts between minority legal orders and their national law, which is intended for the cultural majority.

In this chronicle, based on a recent decision of the Court of Justice of the European Union, we will reflect on a question which, although not new, continues to deserve particular attention since it violates the most basic principle of equality and, in the context of industrial relations, a clear discrimination on grounds of religion.

The case

A request for a preliminary ruling was made about the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union and Article 11, Article 2(2)(a), Article 2(5) and Article 7(1) of Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation during professional activity.

The reference for a preliminary ruling was made in the context of a dispute between Cresco Investigation GmbH and Markus Achatzi concerning the right of the applicant to receive a supplementary compensation in respect of the remuneration paid due to work on a Good Friday.
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Surrogacy in the light of European Union law: brief considerations

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 by Diana Coutinho, Invited Assistant at the Law School of UMinho

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On 22 August, 2016, Law no. 25/2016 was published, regulating the access to surrogacy and performing the fourth amendment to the Portuguese law on medically assisted procreation (Law no. 32/2006, of 26 July). Before Law no. 25/2016 comes into force, resorting to surrogacy was expressly prohibited (whether for a price or free of charge). With the aforementioned legislative amendment, access to surrogacy became possible, provided that under exceptional circumstances (namely, absence of uterus, injury or disease of this organ that absolutely and definitively prevents the woman’s pregnancy or in clinical situations that justify it), free of charge and resorting to the genetic material from at least one of the beneficiaries. However, the new law was not exempt from criticism, culminating in the judgment of the Portuguese Constitutional Court no. 225/2018 and consequent suspension of access to surrogacy. According to the Portuguese Constitutional Court, surrogacy performed under the terms of Law no. 25/2016 – with an exceptional and gratuitous nature and limited only to the cases authorized by law – does not violate the principle of human dignity (neither of the surrogate mother nor of the child), nor the State’s duty of child protection. However, the excessive indeterminacy of the law (as in the case of paragraphs 4, 10 and 11 of Article 8), the absence of the surrogate’s right to repentance (restricted to the possibility of withdrawal of the consent provided by the surrogate only until the beginning of medical assisted procreation’s therapeutic proceedings) and the failure to implement the surrogacy’s nullity regime (paragraph 12 of Article 8, since the law does not distinguish between the effects of a valid contract and a null contract) substantiate the declaration of unconstitutionality. Amendments to the regulation of the surrogacy are greatly expected, in particular the solution that the legislator will find to protect the interests of the parties involved: surrogate mother, beneficiaries and, in particular, the child.
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Blockchain and art market

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Gallery exhibition opening

 by Geo Magri, Professor at the University of Torino

▪

In recent times, blockchain technology has begun to be used to ensure certainty in the circulation of works of art.  Through the blockchain it is possible to record the existence of any author’s rights concerning the work, or the transfer of ownership of an art object, in order to make its circulation safer. These are aspects that, for a global market like this one, are of central importance and that allow us to understand why the first projects were launched to create chains aimed at meeting the specific needs of this sector, overcoming the critical issues that the art market traditionally brings.

Already in the seventies an attempt was made to achieve a result like that which today guarantees the blockchain. At the time it was decided to use the analogic recording of works of art, through the deposit of a picture and the recording of data that allowed the reconstruction of transactions related to the work. The project was proposed by Bolaffi of Turin and was aimed at ensuring the origin and traceability of the works sold. The idea of the analogical register was not successful in the practice of the art market and this was not difficult to predict since it was an excessively large market for an efficient analogical register.
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Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)

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 by Alessandra Silveira, Editor

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On 27 February 2018, the ECJ delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16).[i] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the European Union – and, arguably, for the construction of the legal-constitutional model that supports the European integration. Mainly because the question of judicial independence was assessed without any relevance having been given to the issue of whether or not the austerity measures in question were covered by EU law.[ii] It is worth recalling the circumstances of this case law to understand the following ECJ steps.

At the origin of the request for a preliminary ruling was a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). According to the Supremo Tribunal Administrativo, the measures for the temporary reduction in the amount of public sector remuneration, also applied to the members of the judiciary, were based on mandatory requirements for reducing the Portuguese State’s excessive budget deficit during the year 2011. The referring court therefore considered those measures as measures adopted within the framework of EU law or, at least, as being European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting financial assistance.

Besides, the legal action brought before the Supremo Tribunal Administrativo was accompanied with an opinion presented by me and my Colleague Pedro Froufe, two of the editors of this blog. The opinion intended to clarify the extent to which the subject matter fell within the scope of application of EU law, triggering the need to refer to the ECJ for a preliminary ruling.[iii] However, this did not play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. This is the password to understand this new standard and the following ECJ steps on judicial independence, in order to Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU.
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Editorial of July 2019

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Shaking Hands Teamwork Staff Team Handshake

 by Pedro Froufe, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

▪


Democracy, negotiation, personal ambitions and backroom deals: the moment of truth for the spitzenkandidaten

1. Last year we had the opportunity to write about the spitzenkandidaten procedure for selecting the President of the European Commission (hereinafter, “EC”) and the power struggle that was brewing between the Institutions with the spitzenkandidaten (lead candidate) at its centre. Knowing what the spitzenkandidaten procedure is and how it works is indispensable for understanding the current essay, thus if the reader is not familiar with it, we would ask you take a few minutes to read our May 2018 editorial before continuing.

2. With the Juncker’s Commission term of office about to reach its end (31 October 2019) and with a new European Parliament (hereinafter, “EP”) with a quite different composition starting its work on 2 July second it is time to select a new President of the EC and, in fact, also the Presidents of the European Parliament and of the European Council (hereinafter “ECON”). Moreover, a new High Representative of the Union for Foreign Affairs and Security Policy and a new President of the European Central Bank will have to be selected shortly. As it is possible to recognize there are a plethora of senior and highly influential positions that will be selected by one or both the EP and the ECON in a very short timeframe. This, of course, will lead to difficult negotiations which creates an obstacle for the spitzenkandidaten procedure because it takes out what is, arguably, the most valuable prize from the table before it can even be in play. As we know the EC has a truly European and supranational character and, for many, due to its powers and competences the EC can be seen as the true “executive” power in the European Union. Furthermore, even if the EP and the Council (of the European Union) are the co-legislators and the ECON defines the broad political priorities, it is the EC who has the prerogative of, in most cases, proposing the laws. The European constitutional design means that the balance in power tilts heavily in favour of the Commission.

3. Obviously, the spitzenkandidaten would not be in danger if there was a clear majority in the EP (either by a coalition or a single party) that could impose its lead candidate to the ECON. As we have stated previously, we are not of the opinion that the candidate of the party that got the most seats automatically gets the right to be President of the EC. That is no more than an oversimplification of the procedure and would be only suited for a system with direct elections (which we actually find the ideal solution). The leading candidate of the party with the largest parliamentary representation will, in most cases, be in the premium position to achieve this objective. After all, there is an unwritten rule or, more accurately, a democratic practice that whoever wins the elections, even absent a majority, should get the position or at least get the first opportunity to try to form the necessary coalition. However, we should not forget that democracy, whether in, is national or supranational is first and foremost the pursuit of consensus. The “burden” to find said consensus and build a coalition in the EP that allows him/her to be selected as President of the EC rests on the candidate. If the candidate that got the most votes, but no majority is unable to do and someone else is, it means that someone else is able to command a broader democratically elected coalition and, therefore, having superior democratic legitimacy should be selected instead.
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Online Legal Platforms – The beginning of the 4.0 Law Practice?

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Innovation Concept

 by Pedro Petiz, Master's student in Law and Informatics at UMinho

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The 4.0 revolution has reached the legal services sector. New online platforms are emerging to connect clients and lawyers, while also providing new and innovative legal services. Nonetheless, several questions arise regarding these new businesses: Are they allowed under Portuguese law? And how are Bar Associations dealing with this new reality?

There are mainly two types of online legal platforms:

– Two-sided Platforms, where an intermediary selects the lawyers who appear on the website, defining the order in which they appear, or referring them to potential clients.[i]

– And websites providing legal services, which are provided directly or indirectly, not necessarily by lawyers.[ii] This category includes question and answer websites (https://answers.justia.com), legal chatbots (www.donotpay.com) and sites where legal documents are automatically drafted (https://lawhelpinteractive.org,[iii] http://www.a2jauthor.org[iv] or the Brazilian http://www.yousolveonline.com ).

Regarding the first type of platform, the Portuguese Bar Association has imposed a total prohibition on its use, on the grounds that they constitute “client solicitation”.[v] In my opinion, this prohibition is disproportionate and constitutes a breach of Article 101 of the TFEU.[vi]

As stated by the European Commission, professional rules “must be objectively necessary to attain a clearly articulated and legitimate public interest objective and they must be the mechanism least restrictive of competition to achieve that objective”.[vii]
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Judgment of the Court (Sixth Chamber) of 27 March 2019, slewo – schlafen leben wohnen GmbH v Sascha Ledowski (Case C-681/17, EU:C:2019:255)

Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(k) and Article 16(e) — Distance contract — Right of withdrawal — Exceptions — Concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ — Mattress whose protective seal has been removed by the consumer after delivery

The dispute in the main proceedings and the questions referred for a preliminary ruling

The request for a preliminary ruling was made in proceedings between slewo — schlafen leben wohnen GmbH (‘slewo’), an online trader which sells, inter alia, mattresses, and Mr Sascha Ledowski, concerning his exercise of his right of withdrawal in relation to a mattress purchased on slewo’s website.
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Editorial of June 2019

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 by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor

▪


Strengthening the rule of law in the EU on the D-Day 75th Anniversary

On 3 April 2019, the European Commission opened a debate to strengthen the rule of law in the EU and setting out possible avenues for future action. The Commission invited the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including legal networks and civil society, to reflect on this issue and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future. Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019. As first Vice-President Frans Timmermans said, the Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of “who we are”. Second, because the functioning of the EU as a whole depends on the rule of law in all Member States. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”.[i]

On this 6 June 2019, D-Day 75th Anniversary, we add more one reason:  European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars. What is important to highlight now is that all the legal-constitutional construction of the post-war in Europe is based on the idea that democracy, in the absent of the rule of law, becomes the tyranny of majority. Without the rule of law, we have nothing, only the nationalist populism and its disastrous consequences. Nationalist populism knows that, being a form of political communication that attempts to reach its goals by breaking the dialectic connection between democracy and rule of law.  So, as the rule of law can be improperly used, the main question in this context is to know what is the substance of the Union based on the rule of law.
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪


Judgment of the Court (Grand Chamber) of 26 March 2019, SM v Entry Clearance Officer, UK Visa Section (Case C-129/18, EU:C:2019:248)

Reference for a preliminary ruling — Citizenship of the European Union — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Family members of a citizen of the Union — Article 2(2)(c) — ‘Direct descendant’ — Child in permanent legal guardianship under the Algerian kafala (provision of care) system — Article 3(2)(a) — Other family members — Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union — Family life — Best interests of the child

1. Facts

The request for a preliminary ruling was made in proceedings between a couple of French nationals and the Entry Clearance Officer, UK Visa Section, concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child. Abandoned by her biological parents at birth, SM was placed in the guardianship of the couple in 2011 under the Algerian kafala system. The application for entry clearance for the United Kingdom was refused on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for intercountry adoption.

The Supreme Court of the United Kingdom was called upon to hear the case on appeal and referred to the Court of Justice questions for a preliminary ruling on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77).
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