Case Comment: C-203/15 Tele2 Sverige AB v Post-och telestyrelsen and C-698/15 SSHD v Tom Watson & Others

Dr Gunnar Beck

The EU Charter of Fundamental Rights precludes the “general and indiscriminate retention of traffic data and location data” and “the Member States may not impose a general obligation to retain data on providers of electronic communications services.” This is clear following the Court of Justice of the European Union’s judgment of 22 December 2016 inTele2 Sverige [1]  which affirms that Court’s previous judgment in Digital Rights Ireland[2], from 2014. In that judgment the CJEU held that the EU’s Data Retention Directive[3] was invalid. Some EU member states, such as Sweden and the U.K., then continued to oblige telecommunications providers to generally retain data under their national laws. In Tele2 Sverige the EU held that such national laws must similarly comply with the Charter’s data protection rules and may thus be similarly invalid.

The Tele2 Sverige judgment is of great significance for a number of reasons. First, the CJEU made clear that the data retention laws of member states must comply with EU data protection rules. Some member states thought that the derogations provided by EU Directive 2002/58 allowed them to introduce national laws governing the general retention of personal date by private companies outside the scope of EU data protection law and the judgment of the CJEU in Digital Rights Ireland in particular.

Second, the CJEU reiterated its judgment, in Digital Rights Ireland and Schrems, that generalised and indiscriminate surveillance is not permissible under EU law. Every phone call, text or internet connection that is made generates data about the location, time and duration of that communication. As the CJEU held, this “retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained.”

Third, the CJEU accepted that it may be necessary to retain data in some circumstances, such as in respect of “a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offenses, and to contribute in one way or another to fighting serious crime or to preventing a serious risk to public security.” Data retention might be lawful if limited on the basis of geography, such as a city centre, where there exists a high risk of preparation for or commission of such offences.

Fourth, the CJEU outlined the criteria a national data retention law needs to contain in order to comply with EU data protection law. Such a law must lay down clear and precise rules and impose minimum safeguards; it must indicate the circumstances and conditions under which data retention may be adopted as a preventative measure. This is to limit such retention to what the ECJ underlines as “strictly necessary.” Where data is retained, such retention must “meet objective criteria, that establish a connection between the data to be retained and the objective pursued.” These objective criteria must be assessed against objective evidence. While the CJEU does allow that member states may require that data may be retained, such requirements will not be easily or lightly imposed.

Fourth, the CJEU stated unequivocally that “the data concerned should be retained within the European Union.” This statement appears to preclude, or imply the need for further legislation authorising, the transfer of personal data outside the EU including the EEA.

In contrast to many of the CJEU’s recent judgments in the areas of monetary policy and EU citizenship law, the Tele2 Sverige judgment is commendable by the standards of traditional judicial reasoning. Articles 7 and 8 EU Charter guarantee the right to private life and to the protection of personal data in broad terms and so warrant a generous interpretation of the individual rights under both provisions. Moreover, there is no restrictive directly effective provision of equal or indeterminate normative status in the EU Treaties which mandates a restrictive interpretation of the scope of either right in relation to the field of electronic communications data retention. The CJEU in Tele2 Sverige further rightly notes that exceptions and derogations to fundamental rights guaranteed by EU law must be interpreted narrowly and not go beyond what is strictly necessary to achieve countervailing public policy objectives, although it should not be forgotten that the principle of the narrow construction of all derogations from treaty provisions was itself established by the CJEU in the absence of a clear basis in the Treaties. Finally, the CJEU’s approach in Tele2 Sverige closely follows the reasoning in the earlier Digital Rights Ireland case in which the CJEU had declared the Data Retention Directive invalid on the grounds that the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) EU Charter.

The Tele2 Sverige decision further merits the following observations. First, the respondent Member States argued that the national legislation in question concerned the ‘retention’ and not the ‘processing’ of personal data. At first sight, this argument might appeal on literal grounds. However, as the ‘processing’ of such data requires their prior ‘retention’, the Court’s ruling may be defended on the grounds that if ‘data processing’ is covered by EU legislation which is subject to judicial review by the CJEU, so must national legislation governing the prior ‘retention’ of such data as there can be no ‘processing’ without ‘retention’ and the risk of unlawful processing is inevitably magnified if the prior indiscriminate detention were exempted from the need for compliance with the EU Charter. Article 3 of Directive 2002/58 further makes clear that the Directive applies to all “processing of personal data in connection with the provision of publicly available electronic communications services in public communications.” It is not unconvincing to conclude, as the CJEU does, that the term  ‘data processing … in connection with‘ provisons of electronic communications also covers the intermediate retention of such data of the relevant communications. Second, the Court’s Judgment may also be defended against criticisms that Article 1(3)  of Directive 2002/58 expressly excludes state “activities concerning public security, defence, State security.” The offending national legislation in Tele2 Sverige governs the retention of data by commercial electronic communication providers, not state activities. Third, the Court’s  emerging and so far expansive interpretation of data protection guarantees under EU law follows on from the Court’s strict adherence to established procedural rights guarantees in the area of EU sanctions law. In both areas the CJEU has not shirked away from questioning EU as well as implementing national legislation on the grounds of their non-compliance with applicable rights guarantees under EU law notwithstanding the obvious political dimension of its rulings and despite the overt contrary political preferences of many member states and their willingness to intervene alongside the respondent EU institution or member state in key proceedings. Continue reading

The sudden emergence of Charter principles in the Glatzel judgment of the CJEU

european-union-flags-at-t-0021Jasper Krommendijk

The judgment of 22 May 2014 in Glatzel is the first judgment in which the CJEU explicitly discussed article 51(1) and 52(5) of the Charter on Fundamental Rights, which distinguishes between (individual) rights and (programmatic) principles.

In Glatzel, the CJEU issued a preliminary ruling on the request of a German court about the compatibility with the Charter of Annex III to Directive 2006/126/EC (amended by Directive 2009/113/EC) laying down minimum standards relating to the physical fitness to drive a motor vehicle as regards visual acuity. The German court asked whether those physical conditions for drivers constitute discrimination on the grounds of disability and, hence, violate the principle of equal treatment (Article 20 of the Charter), and more specifically, the principle of non-discrimination on the grounds of discrimination (Article 21(1)) as well as the principle of integrating of integrating persons with disabilities (Article 26). The CJEU eventually concluded that it did not have sufficient information to conclude that the Annex is invalid.

There are several interesting points which could be looked at more closely, such as the way in which the CJEU used the UN Convention on the Rights of Persons with Disabilities (CRPD) (para. 45, 68-72) as well as the way in which the CJEU carefully examined whether there is an objective justification of different treatment (see below). These two issues –the application of the CRPD and the elaborate justification test- have been the focus of previous judgments of the CJEU (see for example for the former, Z (Case C-363/12 [2014]).

I. The distinction between rights and principles: a background and earlier cases of the CJEU

This post will, however, scrutinise the novel feature of this judgment: the fact that the CJEU has expressed itself for the first time on Article 51(1) and Article 52(5) of the Charter. These provisions make a distinction between rights and principles in the Charter. Article 51(1) provides:

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

Article 52(5) stipulates:

The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

The inclusion of these provisions and this distinction between rights and principles was primarily the result of the opposition of UK, and also some other countries like the Denmark and the Netherlands, to the inclusion in the Charter of ‘social rights’ as legally enforceable claims. The UK eventually agreed with the inclusion of the Charter into the draft Constitution on the condition that the distinction between rights and principles was further clarified. The distinction was thus the result of a hard won battle and formed a crucial element in the Charter’s adoption. Continue reading

After AMS: remaining uncertainty about the role of the EU Charter’s principles

Jasper Krommendijk

On 15 January 2014, the CJEU issued its long awaited judgement in the case of AMS (Case-176/12 [2014]) in which it concluded that article 27 of the Charter of Fundamental Rights of the European Union does not have horizontal effect and can thus not be invoked in a dispute between private parties. This blog entry examines the judgments as well as the -different- Opinion of the Advocate General.

I. Facts and judgment

AMS is an association governed by private law. Its main objective is reintegration of unemployed persons. It challenged and consequently suspended the appointment of Mr. Laboubi as a trade union representative. AMS was of the opinion that this appointment was not required since AMS only had 11 staff members. The French Labour Code only obliges the appointment of a representative for workplaces with more than 50 employees. In its calculation, AMS excluded between 120 and 170 employees with particular contracts (‘accompanied-employment’) from the calculation. This practice was in line with the French Labour Code (Article L. 1111-3). The trade union argued that the latter provision was not in accordance with Directive 2002/14 providing for the consultation of employees. Nonetheless, the trade union could not invoke the Directive, because of the prohibition of horizontal direct effect in legal disputes between private parties, as the case in hand. The trade union thus based its argument on Article 27 of the Charter dealing with workers’ right to information and consultation within the undertaking:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.

In that light the Cour de Cassation in April 2012 referred preliminary questions to the CJEU asking whether article 27 can be invoked in a dispute between private parties. Continue reading

Fundamental Rights and the UK’s Balance of Competences Review

Catherine Taroni

The Ministry of Justice issued a Call for Evidence for a review on the balance of competences between the UK and EU in relation to fundamental rights on 21 October 2013, with the deadline for submitting evidence being 13 January 2014.

The Fundamental Rights Review is part of a broader series of reports on EU competence taking place between 2012-14, aiming to deepen public and Parliamentary underst­­anding of the nature of our EU membership, among other things.  The Call for Evidence seeks answers to 14 questions ranging from the quite specific “What evidence is there that the Fundamental Rights and Citizenship programme provides value for money?” to more far reaching questions covering whether there is any benefit to individuals/business/public sector/other groups within the UK from the Charter of Fundamental Rights, issues of competence creep, and potential consequences for the UK following EU accession to the ECHR.

The Call for Evidence

The approach of the Review is to give an outline of what fundamental rights are, put them in an international context and essentially summarise a brief history of fundamental rights protection in Europe – from the ECHR and from various EU mechanisms.  The Fundamental Rights Review is potentially very important – the stated aim of the Balance of Competences reviews is to audit what the EU does and how it affects the UK government and those residing within the UK more generally.  The main website can be found hereContinue reading

Is Costa v Enel forgotten? CJEU trips over supremacy and direct effect in case concerning Art 41(2)(c) CFREU (C-313/12)

Dr Albert Sanchez Graells

This comment originally appeared on Albert’s personal blog http://howtocrackanut.blogspot.co.uk/

In its Judgment of 7 November in case C-313/12 Romeo, the Court of Justice of the EU issued an important ruling concerned with the extension of the obligation to state reasons derived from Article 41(2)(c) of the Charter of Fundamental Rights of the EU in purely domestic situations.

In the case at hand, the CJEU was especifically presented with a query regarding the compatibility with Article 41(2)(c) CFREU (and, more generally, with the case law on the duty to state reasons) of an Italian rule whereby faulty administrative decisions would not be quashed if the authorities supplemented their statement of reasons in subsequent court proceedings.

In my view, the reasons offered by the CJEU to decline jurisdiction to respond to the questions referred by the Italian court show a poor understanding of (or a lack of willingness to give effect to) the changed nature of the Charter after the entry into force of the Treaty of Lisbon. As very clearly stated, ‘the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law‘ [for discussion, see S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) Human Rights Law Review 11(4): 645-682].

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Case Comment: C-86/12 Alopka

Catherine Taroni

Context

The seminal decision in Zambrano relied upon Article 20 TFEU as a source of residence rights independent of secondary legislation.  The CJEU has so far not been willing to extend its application, and Alopka was another failed attempt to rely upon Article 20 TFEU.

Background

Alopka concerned a Togolese national with French children (born in Luxembourg) and a dispute regarding a refusal to grant Ms Alopka a right of residence and an order for her to leave Luxembourg.  Ms Alopka and her children were reliant on the State although she had been offered a job, which her lack of residence and work permits prevented her from commencing.

The Advocate General’s Opinion

Advocate General Mengozzi differentiated the case from Zambrano as the Union citizen children here did not hold the nationality of the Member State of residence, and therefore fell within the scope of Article 3(1) of Directive 2004/38.  Unlike in Chen, Ms Alopka did not possess sufficient resources for herself and her children so as not to rely on Luxembourg’s social security system.  AG Mengozzi considered that ‘sufficient resources’ for the purpose of Article 7(1)(b) of the Directive were capable of being satisfied by the definite prospect of future resources which would stem from the offer of a job of unlimited duration.  He suggested that the referring court should, in principle, examine the job offer with a view to determining whether the Union citizen children would have sufficient resources under the Directive should Ms Alopka commence work.

The Advocate General did not consider that the Charter of Fundamental Rights could result in the conditions of residence under the Directive being relaxed or disregarded either in order to protect a child’s best interests (Article 24) or due to respect for family life (Articles 7 and 33 of the Charter), as this would mean disregarding the limits to Article 21 TFEU.

Following Iida, where the CJEU interpreted the right derived by a national of a non-Member State who is a non-dependent direct relative in the ascending line of a Union citizen child as falling outside the scope of Directive 2004/38 and being based solely on Article 21 TFEU, the Advocate General suggested that if the referring court were to find that Ms Alopka’s children satisfied the conditions laid down in Article 7(1)(b), then their mother could derive a right of residence based on Article 21 TFEU, rather than from the Directive. Continue reading

Radu – A Case of Failed Dialogue

Anita Davies

The CJEU handed down its decision in Ministerul Public – Parchetul de pe lângă Curtea de Apel Constanţa v Ciprian Vasile Radu last week. In summary, the Court was asked to clarify the extent to which countries are required to take into account rights to a fair trial and liberty when considering whether to execute an a European Arrest Warrant (EAW). It is a short and somewhat surprising judgment, which does not sit well either with the Court’s decision in NS v Secretary of State for the Home Department last year, the original opinion of Advocate General Sharpston, or indeed the questions referred for preliminary ruling. Continue reading

Matrix seminar – EU law and immigration

Ten days ago Aidan and Raza Husain QC spoke at the last of Matrix’s series of evening seminars on EU law as it applies to domestic practice areas.  The session was devoted to immigration law.  For those who are interested, here is Aidan’s paper on Free movement of EU citizens within the EU.  As we all know, the concept of citizenship has been explored in numerous judgments of the CJEU since the concept was introduced into EU law by the Treaty of Maastricht.  Aidan discusses the rights held by EU citizens with particular reference to the Charter of Fundamental Rights, touching on various topical issues including prisoner voting rights (which, as he makes clear, is not just an ECHR issue) and access to legal aid.

Watch out for the second paper, on EU asylum and refugee status law, next week.

Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 1.

Aidan O’Neill QC

The UK Government has long sought to play down the significance of the EU Charter of Fundamental Rights. In its negotiations around, and public presentation of, the substance of the Charter (as originally solemnly proclaimed in 2000) the position of the UK Government was that the Charter simply consolidated existing EU fundamental rights jurisprudence, contained no new rights and did not allow the courts any new powers. And when it was proposed that the Charter be incorporated into TEU by Treaty amendment, the UK sought an “opt-out” from certain of the Charter provisions, which is now contained in Protocol 30 to the Lisbon Treaty. In this series of posts EUtopia law considers the effectiveness of this self-proclaimed opt-out.

UK Governments over the past 20 years, of whatever political hue, have consistently shared a post-Thatcherite hostility to the idea of courts telling them what to do. Particular suspicion has focused, in this regard, on grand proclamations of fundamental rights contained in a variety of international instruments. In the past, our politicians were happy to sign up to these if they remained statements of eschatological hope only. More recent experience has been, however, that (national and international) courts have tended to get their hands on these documents and, taking international law seriously, transformed them into catalogues of justiciable individual rights. This transformation of aspiration into obligation is seen, from the political perspective, as a zero sum game: the increase in the jurisdiction of the courts to consider and adjudicate on these instruments has been experienced as a reduction in power for the politicians, giving them less room to manoeuvre. It is against this background that one can begin to understand the intent and purpose behind the proclaimed UK (subsequently joined by Poland) “opt-out” from provisions of the EU Charter of Fundamental Rights set out in Protocol No 30 TEU.

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