article 7 CFREU – Official Blog of UNIO

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by Sophie Perez Fernandes, Junior Editor

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Back in 2011, the ECJ delivered a pivotal decision in the Zambrano case. With reference to the Rottmann case, the ECJ held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”

By this criterion are included within the scope of application of EU law situations which, a priori, fall within the competence of the Member States (the so-called purely internal situations). The Zambrano-criterion indeed allows EU citizens to rely on their status as EU citizens against their own Member States of nationality even when they have not exercised their rights of free movement. The immediate consequence of the Zambrano ruling was to preclude Member States (in casu, Belgium) from refusing third country national parents of minor EU citizens a right of residence in the Member State of residence and nationality of those children in so far as such decisions would result in the children having to leave the territory of the Union as a whole.

The subsequent case-law gave a rather narrow interpretation to the criterion, as can be confirmed by the judgments delivered in McCarthy, Dereci, Iida, O and S, Ymeraga, Alokpa and NA. The ECJ held the Zambrano-criterion as a specific criterion as it relates to “very specific situations” in which a right of residence may not, exceptionally, be refused to a third country national without the EU citizenship enjoyed by (minor) Member States nationals being (fundamentally) undermined. It thus follows that any right of residence conferred on third country nationals pursuant to Article 20 TFEU are rights derived from those enjoyed by the EU citizen of which they are members of the family and have, in particular, “an intrinsic connection with the freedom of movement and residence of a Union citizen”.

Without calling into question or reversing this line of jurisprudence, the ECJ seems however willing to revive the Zambrano-criterion in more recent cases, addressing some issues so far left in the open. In CS and Rendón Marín, though admitting the possibility of limiting the derived right of residence flowing from Article 20 TFEU to third country nationals (limitation based on grounds of public policy or public security), the ECJ framed the scope of such a limitation, making its application conditional on a case-by-case analysis and upon respect for fundamental rights as protected by the CFREU, namely Articles 7 and 24(2) CFREU. The ECJ further clarified the scope of the Zambrano-criterion as the ultimate link with EU law for the purposes of the protection of fundamental rights in the Chavez-Vilchez judgment delivered last week.
Continue reading “The latest on the Zambrano front – the Chavez-Vilchez judgment” →

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by Alessandra Silveira, Editor
and Pedro Freitas, Member of CEDU

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In the decision Digital Rights Ireland of 2014[i], the ECJ was called upon to assess the validity of the Directive 2006/24 (on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks) in the light of Articles 7 (Respect for private and family life) and 8 (Protection of personal data) of the Charter of Fundamental Rights of the European Union (CFREU) and considered that the obligation imposed by the Directive 2006/24 on providers of electronic communications services constituted an interference with the aforementioned fundamental rights. [ii]

The issue at hand is that the directive concerned all those who used electronic communications services in Europe – even those whose conduct were not in any way linked with criminal activities. Furthermore, while seeking to fight against serious crime, the Directive did not provide for any differentiation, limitation or exception to the retention of data of persons whose communications are subject to professional secrecy. In addition to a general absence of limits, the Directive 2006/24 did not lay down any objective criterion to limit the access of the competent national authorities to the data and its subsequent use. Furthermore, the Directive did not require that the data in question should be kept within the territory of the Union, and thus a supervision by an independent body was not fully guaranteed.

While it is true that the fight against serious crime is of prime importance in ensuring public safety and that its effectiveness may depend on the use of modern investigative techniques, such objective, be that as it may, cannot in itself justify a retention measure such as the one established by Directive 2006/24 as necessary for those purposes[iii]. By adopting Directive 2006/24, the European Union legislature had exceeded the limits imposed by the principle of proportionality in the light of Articles 7, 8 and 52(1) of the CFREU, and for that reason the ECJ ruled the invalidity of the directive, without reservations as to the temporal effects of its decision (ex tunc).

However, following the judgment in the Digital Rights Ireland case, the reaction of the Member States was not consensual, which led to an unlawful differentiation of treatment between European citizens. The decision of the ECJ raised the problem of the effects of that invalidity in relation to the national provisions transposing the directive. According to data released by the Portuguese Public Prosecutor’s Office, ten of the EU Member States have declared invalid the national laws that transposed the data retention directive, either by parliamentary decision or through their constitutional courts. In other Member States, including Portugal, this was not the case because the substantial requirements of the ECJ’s decision were deemed satisfied by the national legislation that transposed it. [iv]

Continue reading “Implications of the declaration of invalidity of the Directive 2006/24 on the retention of personal data (metadata) in the EU Member States: an approach to the judgment Tele 2 of 21 December 2016” →