Tag: CJEU

Commentary to the Bezirkshauptmannschaft Landeck judgment: a failure by the CJEU in appropriately balancing privacy, data protection and the interests of law enforcement [1]

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Tiago Sérgio Cabral [Editor of this blog and Project Expert for the Portuguese team in the "European Network on Digitalization and E-governance" (ENDE)]

1. Background

The Court of Justice’s decision in Case C- 548/21 (Bezirkshauptmannschaft Landeck) probably got less attention than it deserved from legal scholars due to being issued at the same time as other high profile data protection cases and connected to Directive 2016/680/EU (the “Law Enforcement Directive”) instead of the GDPR. However, there are good reasons to engage in a deeper analysis of this case. The Bezirkshauptmannschaft Landeck judgment addresses access by law enforcement to mobile phones, which nowadays store large amounts of personal data that most people prefer to maintain private, but that law enforcement considers key for criminal investigation purposes. The Court of Justice’s conclusions regarding this issue are surprising as they seem out of step with previous case-law. Other less controversial but still relevant takeaways from this judgment, such as those regarding the scope of the concept of “personal data” may have relevance beyond data protection in the context of law enforcement.

    2. The Court of Justice’s Decision

    The case arises from a request for a preliminary ruling from the Regional Administrative Court of Tyrol (Austria). The factual background of the judgment is relatively straightforward: Austrian customs authorities seized a package for a data subject (CG) containing 85 grams of cannabis. Pursuant to this seizure, law enforcement conducted a search of CG’s residence, questioned him, and requested access to connection data on CG’s mobile telephone. CG refused and, as such, law enforcement seized his mobile phone, including SIM and SD cards.

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    Procedural changes in the European Court of the European Union by entrusting preliminary ruling competences to the General Court: first impressions

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    Joana Covelo de Abreu (Editor of this blog and Key-staff member of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+).

    Protocol No 3 on the Statute of the Court of Justice of the European Union was amended by Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council, of April, 11th 2024, which entered into force on September 1st 2024. These changes were mainly focused on relieving the Court of Justice from some of its jurisdictional demands, especially by entrusting the General Court the competence on certain specific areas in which preliminary questions could be raised. Notwithstanding, the opportunity was also embraced to “modernize and simplify procedures before the two courts”, i.e., the Court of Justice and the General Court.

    In fact, the Court of Justice of the European Union was already called upon to pronounce itself concerning the possibility to transfer jurisdiction on preliminary references to the General Court, under specific circumstances: under Regulation (EU, Eurotom) 2015/2422, this institution submitted a report to the European Parliament, the Council and the Commission on 14th December 2017, where it “took the view that there was no need, at that time, to propose changes as regards the manner of dealing with requests for a preliminary ruling under Article 267 TFEU.” However, in that same report, the Court also “pointed out that a subsequent transfer of jurisdiction to the General Court to give preliminary rulings in certain specific areas could not be ruled out if the number and complexity of requests for a preliminary ruling submitted to the Court of Justice were to be such that the proper administration of justice required it” (Recital 1 of Regulation 2024/2019).

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    Summaries of judgments: Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council | Administration of the State Border Guard Service of Ukraine v EUIPO

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    Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

    Judgment of the General Court (Grand Chamber) 2 October 2024, Case T-797/22 Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council

    Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition on the provision of legal advisory services to the Russian Government and entities established in Russia – Fundamental role of lawyers in a democratic society – Right of lawyers to provide legal advisory services – Right to be advised by a lawyer – Articles 7 and 47 and Article 52(2) of the Charter of Fundamental Rights – Independence of lawyers – Rule of law – Proportionality – Legal certainty

    Facts

    The General Court (“GC”), dismissed an action brought by the Belgian Bar Association, as well as a certain number of individual lawyers, seeking to annul a Regulation adopted by the Council, which sought to restrict the provision of legal advisory services to the Russian Government, and entities, established in the Russian Federation.

    In light of the military aggression carried out by the Russian Federation (“Russia”) against Ukraine, several restrictive measures have been adopted by the Council targeting persons, entities and bodies supporting actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.

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    Football and the Internal Market: Integration beyond passion? (CJEU “BZ” ruling of October 4, 2024)

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    Pedro Madeira Froufe [Editor of this blog and Coordinator of the Group "Studies in European Union Law" (CEDU), of JUSGOV - Research Centre for Justice and Governance, University of Minho).
    The current image has no alternative text. The file name is: pexels-photo-1171084.jpeg

    1. Football currently calls for multiple angles of analysis. In recent decades, as an economic activity, it has developed universally. It is a very specific economic activity that involves notable movements of capital and human resources, sociological and cultural aspects. It increasingly involves a technological, television and audiovisual aspect. It is common to say about football, that it – as a phenomenon – “moves passions and crowds”. In parallel, there are manifestations of local, regional and national identity associated with football. This has, directly and indirectly, a very significant economic weight.

    For example, according to a study/record of international transfers of football players, called “Transfer Matching System (TMS)”, between 2011 and 2020, the positive net balance of player transfers from Portugal to other countries would have been greater than 2.5 billion Euros.[1] Progressively, football developed its professional-economic aspect, inserted in its own relevant market, which was also being built, solidified and growing in recent decades. The so-called “football industry” (a relatively common expression) is overlapping, on a global scale, with the dimension of football as a mere sporting, educational and leisure activity.

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    Summaries of judgments: Bytedance v Commission

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    Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

     ▪

    Judgment of the General Court (Eighth Chamber, Extended Composition), 17 July 2024, Case T-1077/23 Bytedance/Commission

    Digital services – Regulation (EU) 2022/1925 – Designation of gatekeepers – Online social networking service – Requirements – Presumptions – Rebuttal of the presumptions – Rights of the defence – Equal treatment.

    Facts

    The General Court (“GC”), interpreted for the first time the Digital Markets Act[1] (“DMA”), rejecting the action of annulment, brought by the Bytedance group (hereinafter, taken together, « Bytedance ») against the decision by the European Commission to designate Bytedance and the undertakings directly or indirectly controlled by it, as gatekeepers within the meaning of the DMA.

    The DMA aims to contribute to the good functioning of the internal market by establishing rules that ensure the contestability and equity of the digital markets. According to the DMA, the Commission designates an undertaking as a “gatekeeper” when certain cumulative qualitative criteria are met, namely: (i) it has a significant weight on the internal market; (ii) it provides a core platform service (“CPS”) that is an important gateway that allows business users to reach end users; and (iii) enjoys a solid and long lasting position in its activities, or it will, in all likelihood, enjoy such position in the near future.

    Additionally an undertaking is also presumed to be a gatekeeper when certain quantitative thresholds established based on its turnover, market value and number of users are met. However, if an undertaking meets these quantitative thresholds, it may still rebut its designation as a gatekeeper by presenting sufficiently substantiated arguments to demonstrate that, exceptionally, it does not meet the cumulative qualitative criteria required to be designated as a gatekeeper.

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    Summaries of judgments: Fridman and Others v Council and T-644/22 | Timchenko and Timchenko v Council

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    Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

     ▪

    Judgment of the General Court (Eighth Chamber, Extended Composition) 17 July 2024, Cases T-635/22 | Fridman and Others v Council and T-644/22 | Timchenko and Timchenko v Council

    Common foreign and security policy – Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – Obligation to report funds or economic resources belonging to or owned, held or controlled by the applicants – Obligation to cooperate with the competent national authority – Participation in activities the object or effect of which is to circumvent restrictive measures – Article 9(2) and (3) of Regulation (EU) No 269/2014.

    Facts

    In view of the increasing complexity of sanction evasion schemes, on 21 July 2022 the Council adopted a regulation laying down obligations to report funds and to cooperate with the competent authorities. Failure to comply with those obligations is treated as a circumvention of fund-freezing measures. In practical terms, the aim is to prevent use being made of complex legal and financial arrangements capable of making it, if not easier to circumvent measures, then at least more difficult for the competent national authorities to identify the funds or economic resources subject to restrictive measures.

    The parties concerned brought actions before the General Court of the European Union seeking the annulment of those obligations to declare their funds or economic resources before 1 September 2022 and to cooperate with the competent national authorities. They submit that, since those obligations are not laid down in a decision taken by the Council in the field of the common foreign and security policy (CFSP), they cannot be regarded as measures necessary for the implementation of such a decision. In particular, they argue that the Council regulation amounts to a misuse of powers, since the adoption of the obligations in question should fall within the implementing powers of the Member States.

    The General Court dismisses the actions in their entirety.

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    On rebalancing powers in the digital ecosystem in recent CJEU case law (or on the battle between David and Goliath)

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    Alessandra Silveira  (Editor of this official blog, Academic Coordinator of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+)
    ▪           

    There is no doubt that European Union (EU) law is committed to a certain rebalancing of powers in the digital ecosystem. And why is that? Because today there is a clear imbalance of power in favour of digital service providers, which requires a strengthening of the position of users in their relationship with providers. The Internet has become a space made up of platforms, where unilaterally established and non-transparent business models are developed. This attempt to rebalance power in the digital ecosystem is an exercise in social justice that only the EU can foster. And this trend is particularly noticeable in the field of personal data protection.

    The emergence of a business model based on data – and profiling based on inferred data – reveals the imbalance of power between users and platforms. This has led some authors to recognise the quasi-public powers exercised by technology companies on the Internet: they regulate, enforce and resolve conflicts of interest, acting in an uncontrolled way that we would not even allow public authorities to do in the context of the rule of law. But the problem must be contextualised: what is personal data?

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    Law and politics: the Puigdemont case and the dialogue between courts

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    Teresa Freixes (President of Citizens pro Europe and Jean Monnet Professor ad personam)
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    In recent weeks, the Court of Justice of the European Union (CJEU) has handed down judgments that shatter the assertion, so dear to some, that law cannot constrain policy. I am referring, essentially, to those that have considered the EU’s agricultural and fisheries agreement with Morocco to be contrary to EU law because it does not respect the will of the Sahrawi people, guaranteed by international law (Judgment in Joined Cases C-778/21 P and C-798/21 P and in Joined Cases C-779/21 P and C-799/21 P); also, the EU must grant political asylum to Afghan women who request it because they objectively meet all the legally established requirements for it to be granted, given the systematic violation of rights to which they are subjected in their country (Judgment in Joined Cases C‑608/22 and C‑609/22); and, of course, that which rejects the appeal of Mr. Puigdemont and Mr. Comín, confirming that they cannot be considered MEPs because they have not fulfilled the requirements established in national law to do so (Judgment C-600/22 P).

    No matter how much political agreement there has been between the political bodies of the EU and Morocco, ignoring the fact that legally speaking Western Sahara is still a territory to be decolonised, regardless of the political decision that has been taken to abandon Afghan women asylum seekers to their fate, or the political will that some have had in pretending that one can be an MEP without complying with the electoral law of the Member State, the CJEU has guaranteed the rule of law and the application of the competent rules in the disputes that are the subject of its rulings. This is an example to be followed by the high courts, both supreme and constitutional, in all EU Member States and, particularly, as far as Spain is concerned.

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    Romania: A declaration of war from the High Court of Cassation and Justice against the Court of Justice of the European Union

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    Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
    ▪           

    The judgments of the Court of Justice of the European Union regarding the rule of law and the serious fraud against the financial interests of the European Union appear to have been optional for the Romanian courts, and a new interpretative decision of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, Decision No 37/2024, binding erga omnes, is the last proof of this fact.

    For qualified researchers, the case of the Constitutional Court of Romania is well known. By Decision No 390/2021, the Constitutional Court of Romania created a ‘brick wall’ between the national courts and the CJEU, in order to maintain the applicability of national legislation contrary to the judgment of the CJEU in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, by requiring national ordinary judges not to analyse the conformity of a national provision, already found to be constitutional by a decision of the Constitutional Court, in the light of provisions of European Union law.

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    CJEU case law on ‘amnesties’: prospects for the Spanish amnesty on the Catalan independence conflict

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    Miryam Rodríguez-Izquierdo Serrano  (Professor of Constitutional Law at the University of Seville)
    ▪           

    On 11 June 2024[1], the Spanish Official State Journal published Organic Law 1/2024, of 10 June, on amnesty for institutional, political and social normalisation in Catalonia (Ley Orgánica 1/2024, de 10 de junio, de amnistía para la normalización institucional, política y social en Cataluña).[2] The law entered into force at the same time of its publication. As of this date, it is mandatory for the judicial, administrative and accounting bodies that may be handling cases linked to the sovereignty process in Catalonia (2014-2017) to apply the law. The law orders these bodies to exempt from criminal, administrative or accounting liability those who have been involved in those events, especially those linked to the preparation or consequences of the consultations on independence that took place in 2014 and 2017.

    The approval of this Spanish amnesty law has been preceded by some speculation about the position that the EU will adopt in relation to it, as well as others related to possible preliminary rulings: whether the Spanish courts could ask the CJEU for preliminary rulings before adopting their decision on the application of the amnesty law to each specific case. For this reason, it is relevant to recall what the EU’s position has been, to date, regarding amnesties approved in its Member States. But above all, it is important to find out whether the CJEU has previously ruled on the effectiveness of amnesty laws. This will provide basic guidance on whether the CJEU has jurisdiction over an amnesty law passed in a Member State and on the limits within which a Member State may decide to amnesty criminal, administrative and accounting liabilities.

    Continue reading “CJEU case law on ‘amnesties’: prospects for the Spanish amnesty on the Catalan independence conflict” →