ISSUE Nº10
Y EAR 2 0 2 4
15-19 January 2024
IN-DEPTH: We are Family! The Required Threshold for Non-Execution of a European Arrest Warrant in the Name of the Child’s Right to Family Unity –GN (C-261/22) Silvia Bartolini A further piece in the football law jigsaw: Royal Antwerp (C-680/21) Guillermo Íñiguez and Sergio Íñiguez Back to free movement basics: Social assistance for family members of EU migrant workers in Chief Appeals Officer and Others, C-488/21 by Alezini Loxa Wild Card Developments in the Competitive Dynamics of Data Processing Gianluca Fasano Opinion in Google Shopping: Growing and trimming Occam’s beard and cutting oneself on the way Pablo Solano Díaz The Broad Concept of Non-Material Damages under the GDPR: Data Breach Liability and the Legitimisation of Fear (Natsionalna agentsia za prihodite, C-340/21) Laura Somaini SYMPOSIUM ON EU ENLARGEMENT: The quagmire of EU rule of law enforcement: Limits to jurisdictional enforcement, limited deterrence capacity and asymmetry Carlos Closa THE LONG READ: The EU’s Agency for Fundamental Rights – the past, the present and the future of an atypical “agency” John Morijn and Gabriel N. Toggenburg HIGHLIGHTS OF THE WEEK
ISSN: 2695-9593 2 0 2 4 © A L L R I G H T S R E S E RV E D
IN-DEPTH
3
The Week
ISSUE Nº10 15-19 JANUARY 2024
We are Family! The Required Threshold for Non-Execution of a European Arrest Warrant in the Name of the Child’s Right to Family Unity –GN (C-261/22) Silvia Bartolini Introduction Should a European Arrest Warrant (EAW) be executed even when the surrender of a mother of two young children living with her could deprive those children of their mother and entail the destruction of the family unity in blunt contrast with their best interests? That’s the essence of the question raised by the Italian Supreme Court of Cassation in GN (C-261/22).
In its judgment, the EU Court of Justice (the Court) opens the door to refusing EAW execution on the basis of Article 7 of the EU Charter of Fundamental Rights (CFR) which enshrines the right to family life, Article 24(2)
CFR which provides for the need to take into account the best interests of the child and Article 24(3) CFR, which states that every child has the right to maintain on a regular basis a personal relationship and direct contact with both his or her patents, unless that is contrary to his or her best interests.
This Op-Ed deals with some key legal issues emerging from the inclusion of children’s rights protection in the context of the Framework Decision 2002/584 (FDEAW).
The Interplay between Best Interests of the Child and the EAW The time were the best interests of the child was one of the several interests to be considered when assessing – for instance – an interference with the right to family life (see for instance, joined cases C-356/11 and C-357/11) has long gone. Now the Court imposes on the basis of Article 24(2) CFR a clear obligation on the national
authorities to take into account the best interests of the child ‘at all stages of the procedures’ involving children by carrying out a ‘general and in-depth assessment’ of the individual situation (see for instance, case C-441/19).
Should the best interests of the child be taken into account at the time of the adoption and execution of a EAW? Definitely yes. The Court applies by analogy its reasoning in M.A. (C-112/20). The best interests of the child must be taken into account at the time of the adoption of a return decision against a father of a minor because
it inevitably has ‘significant consequences’ for the child (M.A., para. 36), thus the same goes for an EAW issued in
respect of a mother of young children living with her. Although it does not address them directly, it affects them
indirectly. The Court builds its interpretation on Article 3(1) of the Convention of the Right of the Child and Article 24(2) CFR.
www.eulawlive.com
4
The Week
ISSUE Nº10 15-19 JANUARY 2024
The Court then reminds that the mutual enjoyment by parent and child of each other’s company is a fundamental element of family life (Article 7 CFR) and that children have the right to maintain a personal and continuing relationship with their parents (Article 24(3) CFR).
On such a basis, the assessment of the best interests of the child must be carried out by taking into account: ‘the right to respect for family life, as stated in Article 7 of the Charter . . . to be read in conjunction with the obligation to take into consideration the best interests of the child, recognized in Article 24(2) of the Charter, which encompasses the child’s right […]enshrined in Article 24(3) of the Charter.’
Indeed, the Court has embraced the presumption – albeit rebuttable – that it’s in the best interests of the child
to maintain a regular and personal relationship with both parents (or at least with their primary carer) (see for instance Silvia Bartolini with regards to cases relating to the return of the child under Brussels IIb). The way to
ensure that is via the respect of family life and more specifically the preservation of the child’s family unit (see for instance Eleonora Frasca and Jean-Yves Carlier with regards to cases relating to immigration and asylum).
It is worthwhile to mention that in cases relating to family reunification of beneficiaries of international protection, the Court uses the principle of the best interests of the child as a tool for the materialization of the child’s right
to family unity by building its interpretation of the Qualification Directive on Articles 7 and 24(2) and (3) CFR
conjunctively. In Bundesrepublik Deutschland (C-768/19), for instance, the Court held that the relevant date for
assessing whether the child is a minor is when the child’s father applied for asylum, even if informally. Therefore, a father of a child who qualified for subsidiary protection only when he had reached the age of majority can
claim subsidiary protection. That’s in the child’s best interests. Such interpretation was built on the combination of Articles 7 and 24(2) and (3) CRF (para. 38) and supported by Recitals 18, 19 and 38 and Article 20(5) of the
Qualification Directive which provide that when implementing that Directive Member States should – when assessing the best interests of the child – pay special attention – inter alia, of the principle of family unity and the minor’s well-being and social developments (C-768/19, para. 38).
Arguably, the Court in GN extends such an approach to the EAW FD. The best interest of the child is used to
give substance to the child’s right to family unity. The way through is relying on the combination of Articles 7 and 24(2) and (3) CFR.
Lifting the Mutual Trust Presumption in the Name of the Child’s Right to Family Unity: Considerations and What’s Next
In GN the Court moves further away from the idea that surrenders between Member States can occur quasi-
automatically based on mutual trust by opening a door to questions on the non-execution of a EAW in the light of Articles 7 and 24(2) and (3) CFR.
www.eulawlive.com
5
The Week
ISSUE Nº10 15-19 JANUARY 2024
When it comes to the child’s right to family unity, the executing authority must find a real risk that (1) deficiencies (a) systemic or generalized in the conditions of detention of mothers of young children or of the care of those
children in the issuing Member State or (b) affecting more specifically an objectively identifiable persons, such as
children with disabilities in the legal order of the issuing State (2) will affect (or have already affected) the main proceedings.
The Court aligns the test for possible violations of Article 7 and Article 24(2) and (3) CFR to that set for Articles 4 and 47 CFR and seems to confirm that a departure from the need to prove systemic deficiencies will be accepted
so long as the life of the person concerned is at stake , most notably in cases of seriously ill persons (Lucia van der Meulen).
The executing authority may ask for supplementary information pursuant Article 15(2) of the EAW FD. The issue
that comes forward is what happens if the issuing State does not provide or does provide information that are unsatisfactory, leaving the executing authority with doubts as to whether the conditions of detention of mothers
of young children in the issuing State allows for the respect of the child’s right to family unity in accordance with their best interests (as in the case at hand).
As previously mentioned, Article 24(2) of the Charter creates a clear obligation on national authorities to assess
the best interests of the child before taking any decision that concerns them and in principle to act accordingly. Would the impossibility to assess and accordingly to act in the best interests of the child –due to the lack of
cooperation of the issuing authority– allow the executing authority to lift the principle of mutual trust and refuse to execute the EAW?
The Court sets the bar very high. The executing authority cannot escape the two-steps test which has to carry out with the information available to it. Such a conclusion implies that the principle of mutual trust prevails over the principle of the best interests of the child.
This approach is not so surprising as in XXXX (C-483/20) the Court established that ‘unlike protection against any
inhuman or degrading treatment enshrined in Article 4 of the Charter, the rights guaranteed by Articles 7 and 24 of the Charter are not absolute in nature and may therefore be subject to restrictions under the conditions set out in Article 52(1) of the Charter’ (XXXX, para. 36). This interpretation ‘make[s] it possible to ensure observance of the principle of mutual trust’ (XXXX, para. 37).
Therefore, the principle of the best interests of the child cannot overrule the principle of mutual trust. It’s more of ‘a subsidiary tool to ensure that children’s interests are met’ (Eleonora Frasca and Jean-Yves Carlier).
In such a situation, the executing authority is left with the option to defer the surrender pursuant Article 23(3) EAW FD which –as the Court points out– is impracticable for a considerable period of time.
www.eulawlive.com
6
The Week
ISSUE Nº10 15-19 JANUARY 2024
What emerges clearly from GN is the absolute need for a sincere, continuing and fruitful cooperation between
national authorities not only in order for the system of mutual trust to function but also for ensuring that the best interest of the child is really taken into account in the context of judicial cooperation in criminal matters.
Silvia Bartolini is a Researcher at the Jean Monnet Centre of Excellence of the University of Athens, a visiting Professor at Université Catholique de Lille and a Guest Lecturer at National and Kapodistrian University of Athens. silvia.bartolini@lacatholille.fr or sbartolini@law.uoa.gr.
SUGGESTED CITATION: Bartolini, S.; “We are Family! The Required Threshold for Non-Execution of a European Arrest Warrant in the Name of the Child’s Right to Family Unity –GN (C-261/22)”, EU Law Live, 18/01/2024, https://eulawlive.com/op-ed-we-are-family-the-required-threshold-for-nonexecution-of-a-european-arrest-warrant-in-the-name-of-the-childs-right-to-family-unity-gn-c-261-22-by-silvia-b/
www.eulawlive.com
7
The Week
ISSUE Nº10 15-19 JANUARY 2024
A further piece in the football law jigsaw: Royal Antwerp (C-680/21) Guillermo Íñiguez and Sergio Íñiguez Amid the Super League fallout, another ruling has joined the ever-growing saga of EU football law. In Royal
Antwerp Football Club (C-680/21), delivered on 21 December 2023, the Court of Justice was faced with the so-called ‘home-grown player’ rules enacted by the Union of European Football Associations (UEFA) and the
Belgian Football Association (URBFSA). Royal Anwerp lacks much of the constitutional language – and the high stakes – that characterised Super League and ISU. However, the Grand Chamber’s judgment provides an
interesting example of how sport-related considerations can apply to ‘traditional’ internal market cases. Due to
space constraints, the present Op-Ed will focus on three issues: the role of Article 165 TFEU, the application of Article 101 TFEU, and the analysis under Article 45 TFEU. The background Royal Antwerp concerns the compliance with Union law of the so-called ‘home-grown players’ rules established
by UEFA and the URBFSA. The judgment’s legal and factual context was set out in an earlier Op-Ed; however, some key facts are worth restating.
UEFA is the body tasked with organising and regulating European football. According to its regulations, clubs
partaking in its competitions must include, in their squads, a certain number of ‘home-grown players’ (HGPs): that is, players who ‘regardless of their nationality, have been trained by their club or by another club in the
same national association for at least three years between the ages of 15 and 21’ (para. 6). According to UEFA’s regulations, clubs must register at least eight such players, of which at least four must have been trained by the club in question. Crucially, the other four HGPs can be trained by other clubs belonging to the same national association. Similar rules are set out by the URBFSA, according to which clubs wishing to participate in its
professional football divisions must include, in their squads and in their match sheets, a certain number of players who have been affiliated to a Belgian club for at least three full seasons before their 23rd birthday (paras. 9-12).
In the dispute in the main proceedings, UL, a professional football player of both Belgian and third country nationality, brought an action before the Belgian Court of Arbitration for Sport (CAS), alleging that both UEFA and URBFSA’s rules violated his free movement rights under Article 45 TFEU. The case, in which Royal Antwerp
subsequently intervened, made its way to the Court of First Instance in Brussels, which stayed proceedings and referred to the Court of Justice two questions: the former, on whether Article 101 TFEU precluded the application of UEFA’s rules; the latter, on whether Articles 45 and 101 TFEU preclude the application of the URBSFA’s rules on HGPs.
www.eulawlive.com
8
The Week
ISSUE Nº10 15-19 JANUARY 2024
How peculiar are the ‘peculiarities’ of sport? The Grand Chamber’s judgment largely echoes the Opinion handed down by AG Szpunar (analysed here). Like the Advocate General, the Court of Justice confirms that the present dispute is a ‘pure’ internal market one, the
context of which happens to involve the regulation of football. Therefore, and because the practice of sport is subject to the Treaty ‘in so far as it constitutes an economic activity’ (para. 53), the present case can fall within the scope of both competition (Meca-Medina) and free movement (Walrave and Koch) law.
When reading Article 165 TFEU – which enshrines the so-called ‘European Sport Model’ – the Court of Justice waters down the constitutional rhetoric advocated for by some parties. This provision, the Court argues, ‘confer[s] a supporting competence on the Union’, allowing it to pursue not overarching policies, but a number of limited
actions in the area of sport (para. 67). In reaching this conclusion, the judgment embraces a textual, almost originalist perspective: reference is made to ‘the drafters of the Treaty’, who did not intend to go beyond this, and
to the provision’s ‘insertion in Part Three of the FEU Treaty’, which stands in contrast with those provisions of
general application contained in Part One thereof (para. 68). Therefore, although the specific characteristics of sport may play a role in any such legal analysis, they are stripped of the quasi-constitutional symbolism embraced by other Advocates General.
The competition law analysis Having set out the above, the Opinion turns to the competition law analysis: in other words, to the question of
whether the HGP rules breach Article 101 TFEU. After finding that UEFA and the URBSFA’s rules constitute
‘decisions by an association of undertakings’ (paras. 81-82), and can therefore be caught by Article 101 TFEU, the Court of Justice asks whether these decisions constitute ‘by object’ or ‘by effect’ restrictions of competition.
Although the Court’s judgment is by no means conclusive, leaving the final decision to the referring court (para. 108), it does provide some indications to this effect. At paragraph 107, for example, it suggests that the HGP rules
‘limit or control one of the essential parameters of competition in which football clubs may engage, namely the recruitment of talented players’. This, it adds, can have a significant (anticompetitive) impact on both the upstream market (the recruitment of players) and the downstream market (interclub football competitions).
Throughout its analysis, the Court repeatedly draws on sport’s ‘specific characteristics’. When categorising the restrictions as ‘by object’ or ‘by effect’, it cites football’s ‘considerable social and cultural importance’; the fact
that competitions are often organised nationally; or the centrality of ‘sporting merit’ to the organisation of those competitions (paras. 104-106). When determining, for the purposes of Article 101(3) TFEU, whether the conduct at issue has a favourable effect for users, the Court interprets said ‘users’ to include professional clubs and
players, but also the final ‘consumers’ of football: namely, spectators and television viewers (para. 130). In doing so, it embraces AG Szpunar’s analysis, taking into account the particular reality of football but stripping it of its constitutional fanfare. In other words, the Court of Justice adopts a nuanced – and orthodox – approach, whereby the peculiarities of sport neither enjoy a carte blanche, nor can they be disregarded by national courts.
www.eulawlive.com
9
The Week
ISSUE Nº10 15-19 JANUARY 2024
The free movement analysis Finally, the judgment focuses on Article 45 TFEU, a provision which is dealt with far more briskly. On the facts, the Court of Justice has no problem in deeming that the URBSFA’s rules infringe – at least in principle – Article
45 TFEU. This is the case because said rules, insofar as they require players to demonstrate a ‘national connection’ in order to participate in the domestic competitions in question, are indirectly discriminatory (paras. 136-140).
More interesting, however, is whether this potential breach can be justified, a question which requires (i) finding a legitimate objective in the public interest and (ii) establishing that the latter is proportionate. When identifying
the potential justification, the Court of Justice once again relies on sport-related considerations, thereby following
a well-trodden path (see, for example, Bosman or Olympique Lyonnais). This is most obvious at paragraph 144, where it recalls that ‘bearing in mind both the social and educational function of sport … and, more broadly, the considerable importance of sport in the European Union … the aim of encouraging the recruitment and training of young professional football players constitutes a legitimate objective in the public interest.’
Notwithstanding the above, the judgment adds, the very design of the HGP rules may be flawed. By placing on
the same footing any young player who has been trained by a club from the same national association, the rules
may incentivise large clubs to free ride by buying their HGPs from other national teams. Insofar as this is the case, the objective which may justify this regulatory framework – ‘encouraging local investment in the training of young
players’ – may be emptied of any meaning (para. 147). Although this is left for the referring court to determine,
the judgment concludes by making it clear that, unless the justification and proportionality limbs are satisfied, Article 45 TFEU precludes HGP rules which give rise to an indirectly discriminatory system (para. 150). Conclusion Royal Antwerp is unlikely to prove a Bosman-like moment for EU football law. This does not mean, however, that it is without legal or practical interest. To begin with, the judgment provides yet another example of how sport-related considerations can feed into competition and internal market analyses. Although the Court of Justice moves away from the rhetorical pomp which often surrounds the ‘European Sports Model’, many of the
latter’s characteristics play a central role in its analysis. Article 165 TFEU, in other words, serves a twofold role: on the one hand, it can be used to identify objective justifications which parties may rely on when restricting the
application of the TFEU provisions in question; on the other, it provides a factor which the Court can consider
in its proportionality analysis, as can be observed in paragraphs 146-148 of the present judgment. Nor need Royal
Antwerp be inconsequential in practice. Reconceptualising the design of the HGP rules – for example, to reduce powerful clubs’ incentives to buy their ‘home-grown’ players – could help mitigate the ever-growing inequalities in European football. Conversely, the current framework could be deemed beneficial, allowing larger clubs to
purchase HGPs from smaller domestic clubs and therefore rewarding the latter’s investment in the recruitment and training of young players.
www.eulawlive.com
10
The Week
ISSUE Nº10 15-19 JANUARY 2024
For the time being, however, it will be for the referring court to determine whether UEFA’s HGP rules are, in fact, incompatible with Union law.
Guillermo Íñiguez is a DPhil candidate in EU Law at Somerville College, Oxford. Sergio Íñiguez is an LLM candidate in European Law at Leiden University.
SUGGESTED CITATION: Íñiguez, G. and Íñiguez, S.: “A further piece in the football law jigsaw: Royal Antwerp (C-680/21)”, EU Law Live, 1601/2024, https://eulawlive.com/op-ed-a-further-piece-in-the-football-law-jigsaw-royal-antwerp-c-680-21-by-guillermo-iniguez-and-sergio-iniguez/
www.eulawlive.com
11
The Week
ISSUE Nº10 15-19 JANUARY 2024
Back to free movement basics: Social assistance for family members of EU migrant workers in Chief Appeals Officer and Others, C-488/21 Alezini Loxa Introduction As 2023 was coming to an end, the Court of Justice (‘the Court’) ruled on yet another case on residence and social assistance for family members of EU migrant workers. At the core of the dispute lied questions related to the
national organisation of social policy, residence rights and social assistance for EU migrants and their families, and financial solidarity between Member States.
These questions have been asked time and again in relation to children and spouses of EU migrant workers
already since Michel S (76/72) in the 1970s, and in the particular case the focus moved on dependent relatives
in the ascending line. Beyond this factual novelty, what makes the present judgement special is that a Grand Chamber formation was required to take the reasoning of the Court back to the basics. That is to free movement of workers –and not to EU citizenship– as the central framework that guarantees the protection of residence and social rights for EU migrant workers and their family members. Facts of the Case The dispute giving rise to preliminary ruling in Chief Appeals Officer and Others (C-488/21) originates in a claim for disability allowance made by GV, a Romanian national. The woman was residing in Ireland as the dependent mother of a Romanian worker, who had also acquired Irish citizenship by naturalisation.
In 2017, GV applied for a Disability Allowance, a social assistance benefit attributed upon fulfilment of criteria
related to age, disability and resources. This social assistance benefit was a ‘special non-contributory cash benefit’ falling under Regulation 883/2004 and could only be claimed at the state of residence. Her lawful residence as
the dependent parent of an EU migrant worker was not disputed. Rather the dispute which led to the questions referred by the Irish Court of Appeal was whether she could maintain her residence rights in case she was granted the disability allowance.
In this regard, the Irish Court of Appeal posed three questions to the Court of Justice on the interpretation of the Citizens’ Rights Directive 2004/38, the relation of dependence and residence rights for ascendants of EU migrant workers, as well as on the effects of social assistance attribution for such relation of dependency.
www.eulawlive.com
12
The Week
ISSUE Nº10 15-19 JANUARY 2024
Apart from the parties before the national court, the Irish State and the European Commission, the Czech, Danish and German Governments also intervened, indicating that equal treatment for EU migrant workers and their family members as regards access to social benefits remains a sensitive issue in some Member States. AG Opinion Addressing the Case as a Classic EU Citizenship Case In an Opinion issued in February 2023, AG Ćapeta suggested a resolution of the case through reformulation
of the questions referred and an emphasis on the rights derived from Article 21(1) TFEU on EU citizenship. Specifically, following the findings of the Court in Lounes (C-165/16), the AG suggested that family members of EU nationals who have moved to a Member State and have become naturalised there enjoy residence rights on the basis of Article 21(1) TFEU.
In such circumstances, the Citizens’ Rights Directive applies by analogy and sets out the minimum content of the rights of family members of naturalised citizens. Similarly, she found the Workers Regulation 492/2011
applicable by analogy, and informing the minimum rights of EU migrant workers who become naturalized in the host state. According to the AG, both the Citizens’ Rights Directive and the Workers Regulation should inform the interpretation of the Court.
Following, the AG went through the questions of the referring court and suggested a broad interpretation of the
notion of dependency under the Citizens’ Rights Directive. She further suggested that social benefits should not
deprive family members of the right of residence and the right to equal treatment. Finally, she suggested that Member States cannot limit social assistance to dependent relatives of EU migrant workers in the ascending line on the grounds that they would become unreasonable burden under Article 45(2) TFEU as informed by the Workers Regulation together with Article 21(1) TFEU as informed by the Citizens’ Rights Directive The Court Taking Us Back to EU Free Movement Basics In a short analysis, numbering approximately one third of paragraphs in comparison to the AG Opinion, the Court
takes us back to the basics of the free movement of workers framework and follows the reasoning established in its case-law during 1970s and 1980s as regards equal treatment of migrant workers and their families.
As a first step, the Court reformulated the questions addressed by the national court, however not following the suggestion of the AG. While acknowledging the pertinence of Article 21(1) TFEU, the Court referred to Article
45 TFEU as the specific provision of relevance in situations concerning free movement of workers and it set it at the centre of the judgement. It grouped together the three questions and reformulated them into a single one
with a focus on the interpretation of Article 45 TFEU in light of the secondary legislation on the matter, that is the Workers Regulation and the Citizens’ Rights Directive.
It confirmed that a naturalised citizen (who was an EU migrant worker) enjoys a right to equal treatment under Article 45(2) TFEU which finds specific expression in Article 7(2) of the Workers Regulation. Following, the
www.eulawlive.com
13
The Week
ISSUE Nº10 15-19 JANUARY 2024
Court found that the social assistance benefit at stake falls within the notion of social advantages under Article 7(2) referring by analogy to the Lebon (C-316/85). Relatedly, the Court suggested that the family member in
the present case is an indirect beneficiary of equal treatment enjoyed by the EU migrant worker and can rely on Article 7(2) of the Workers Regulation to claim the allowance.
According to the Court, the purpose of Article 7(2) of the Workers Regulation read in combination with the Citizens’ Rights Directive is to promote free movement of workers by ensuring the best possible conditions for
the integration of the family members of EU migrants in the host state. This would not be achieved if family members were not able to access social assistance in the host state under equal conditions, or in case access to
social assistance would lead to a loss of residence rights. It is for this reason that the status of dependence of the
family member under Article 2(2)(d) of the Citizens’ Rights Directive, on which the residence rights is based, is not forfeited by the grant of social assistance.
Before concluding the case, the Court explains why the reasoning behind this solution –and if I may add, the
preference for this legal basis over Article 21 TFEU– is uncontroversial. Specifically, the Court finds it important to note that migrant workers pay taxes in the Member States and thus personally contribute to the financing of
the social policies followed. It is precisely for this reason that they should be able to profit from social rights under the same conditions that national workers do. The objective of the Citizens’ Rights Directive to avoid unreasonable
burdens in the host Member States can justify the limitation of rights in the context of free movement of persons, but not in the context of free movement of workers.
Conclusion: On Playing Safe and Sticking to the Beauty of the Internal Market Overall, the decision in Chief Appeals Officer and Others (C-488/21) marks a return to the past as regards the
reasoning of the Court. The Court no longer superimposes Article 21 TFEU on EU Citizenship as the overarching framework guiding its interpretation on rights of EU nationals and their family members, but it rather sticks to the specific legal basis of Article 45 TFEU.
Two important takeaways emerge from this case. First, the Court draws a clear line between free movement of
persons and free movement of workers. While claims in relation to financial repercussions of migration can be accepted with respect to the first, this cannot be the case in relation to the latter. This approach is also aligned with
the more privileged treatment secondary law reserves for economically active migrants and their family members. The second relates to the relevance of Article 21 TFEU. From Jobcenter Krenfeld (C-181/19) onwards, the Court
shows a preference for the free movement of workers framework over the EU citizenship provisions when possible. The reasoning and the outcome of the present case would have been very similar if the dispute was adjudicated
before the Maastricht Treaty. After all, the provision of Article 7(2) of the Workers Regulation has been a central part of the free movement of workers case-law, first appearing in Regulation 1612/68. This is further supported by the references of the judgement to Lebon (C-316/85), as if no cases on access to social benefits have been issued ever since.
www.eulawlive.com
14
The Week
ISSUE Nº10 15-19 JANUARY 2024
Reading through the short, technical and concise language of the Court one is left with the impression that the
last thirty years of case-law on EU citizens’ rights, with the corresponding framing thereof as the fundamental status of EU nationals might be phasing out. Rather, what we are back to is EU law basics.
Alezini Loxa is a Post-Doctoral Researcher in EU Law at Lund University, Sweden. She has written a monograph on ‘Sustainability and EU Migration Law: What Place for Migrants’ Rights’ (Doctoral thesis, Media Tryck Lund 2023). A full list of her publications can be found here.
SUGGESTED CITATION: Loxa, A.; “Back to free movement basics: Social assistance for family members of EU migrant workers in Chief Appeals Officer and Others, C-488/21”, EU Law Live, 15/01/2024, https://eulawlive.com/op-ed-back-to-free-movement-basics-social-assistance-for-familymembers-of-eu-migrant-workers-in-chief-appeals-officer-and-others-c-488-21-by-alezini-loxa/
www.eulawlive.com
15
The Week
ISSUE Nº10 15-19 JANUARY 2024
Wild Card Developments in the Competitive Dynamics of Data Processing Alba Ribera Martínez The Court of Justice’s recent and widely expected ruling in Meta Platforms and Others (Conditions generals d’utilisation d’un reseau social) (C-252/21) set into stone one of the major developments that will unravel during the coming years relating to the data processing operations of large digital platforms: users are to be offered an equivalent alternative to the catering of the digital service that is not accompanied by the heavy reliance of the business model of their data processing operations (para. 150).
Meta responded to the challenge in kind by launching its ‘Pay or Okay’ model. Users are forced to choose between
an experience based on personalised advertising and tracking or pay a fee in exchange for their personal data to be protected by the digital operator. The European Data Protection Board and different DPAs have voiced their
concern that Meta’s proposal falls short of meeting the requirements set out by the GDPR (see my previous post on this same matter).
The example, however, hints at the ambivalent effects that the current trends in data processing may hold in the coming year. Despite the Court of Justice’s statement, it is not completely clear that a data controller’s choice to
rely on the processing of personal data is necessarily detrimental to competition and vice versa. Even though some competition authorities are adamant in defending that a degraded degree of competition encourages exploitative
abuses of personal data, the developments ahead of 2024 remain uncertain, bearing in mind the dubious shift of consumer attitudes towards the protection of their personal data.
Getting the story straight: no consolidated economic or legal theory is applicable Competition authorities rushed to celebrate the Court of Justice’s ruling because it recognised that the protection
of personal data is a parameter of competition. That is not entirely true, nor the Court of Justice’s case law supports that same finding. On one side, the Court of Justice did recognise that “the access to personal data and the fact that it is possible to process such data have become a significant parameter of competition between undertakings in the digital
economy” (para. 51). The statement does not automatically mean that the protection of that same access and processing is, necessarily, a parameter of competition. If that were to be the case, then the Court of Justice would
have established it. Instead, it confirmed that an undertaking’s lack of compliance with the GDPR could be a vital clue to determine whether its conduct departed from normal competition. The nuance is substantial, insofar as the Court of Justice implicitly recognises the value of personal data on its own merits, and not necessarily under the lens of its presumed protection under a piece of regulation that bears a distinct objective to competition law.
www.eulawlive.com
16
The Week
ISSUE Nº10 15-19 JANUARY 2024
On the other side, the Commission’s decisional practice nor the Court of Justice have unequivocally stated that the protection of personal data is a parameter of competition, despite that competition authorities such as the
French in its latest joint statement with the French DPA declared that was to be the case. The main reference
that is constantly brought forward to sustain this point revolves around the EC’s decision on the merger between
Microsoft/LinkedIn (para. 350 and footnote 330). However, the Commission’s decisional practice is far from being coherent and it is not completely aligned with the position of EU courts. For instance, in the recent
General Court ruling in Google and Alphabet v Commission (Google Android) (T-604/18), privacy was equated to a manifestation of a digital service’s quality, and not as a standalone parameter of competition.
Thus, the Court of Justice’s recent preliminary ruling adjusts to this ambivalent legal background, which is also
patent from the economic theory surrounding the analysis of privacy protection that has failed to capture its correlation with competition and consumer welfare in absolute terms positively or negatively. A completely different discussion is that of placing the protection of personal data abiding by the terms of the GDPR preferentially as a matter of competition policy (this seems to be the case following Reynder’s speech delivered before the ICN). The future trend: increased data protection, decreased personalisation or the wild card The UK’s competition authority recently issued a report scanning the horizon of the digital sector in December
2023. The report put forward the ten most salient trends surrounding the digital arena. The clash between the
continued desire of consumers to enjoy personalised experiences online and their consciousness of how their data is used was the last one of them. As opposed to the monistic and simplistic assumptions of the collision between the processing of data and the competitive dynamics of digital platforms, the CMA painted a picture for the
future that is not encouraging in terms of predictability, since the market and consumer expectations may evolve in any of four fundamental ways.
First, the personalisation of digital services may be further developed for existing services via the undertaking’s
expansion of their personalisation strategies towards new markets. Second, the current personalisation-based
monetisation model of most digital platforms may shift to hyper-personalisation. That is to say, competitors will use AI and real-time data to map user data to potentially cater to their needs and patterns of behaviour even before the user achieves to articulate them so that user retention and revenues are maximised. Third, the desire of consumers to protect their personal data flourishes up to a point where the phenomenon of diminishing returns applies to personalising services and online advertising so that the level, nuance, and degree of personalisation remains similar to the current level or even decreases. Fourth, the explosion of the ‘wild card’ development takes
place and privacy-enhancing technologies (PETs) permeate the market and the operations of digital platforms that both the benefits of personalisation are extracted by undertakings at the same time as data protection concerns are addressed and ameliorated.
Although the four trends may merge and morph into a patchwork of realities unravelling in a different way into
each one of the services catered online, the New Year’s resolutions of competition authorities and data protection
www.eulawlive.com
17
The Week
ISSUE Nº10 15-19 JANUARY 2024
authorities should also move in this same direction, by acknowledging that black-and-white solutions to the
interplay between competition law and data protection will not capture the reality of the market. Instead, the four
pathways open for the development of markets demonstrate that more data protection is not always necessarily
welfare-enhancing, nor more competition may necessarily entail that data protection is safeguarded to a greater extent. Ambivalence lies at the core of the intersection of both fields of law. Alba Ribera Martínez is a PhD Student at University Carlos III of Madrid.
SUGGESTED CITATION: Ribera, A.; “Wild Card Developments in the Competitive Dynamics of Data Processing”, EU Law Live, 15/01/2024, https:// eulawlive.com/op-edwild-card-developments-in-the-competitive-dynamics-of-data-processing-by-alba-ribera-martinez/
www.eulawlive.com
18
The Week
ISSUE Nº10 15-19 JANUARY 2024
Opinion in Google Shopping: Growing and trimming Occam’s beard and cutting oneself on the way Pablo Solano Díaz As was bound to be the case, Advocate General (‘AG’) Kokott reached the right conclusion in her Opinion in case Google Shopping (C‑48/22 P, the ‘Opinion’). By ‘right’ I mean the only possible conclusion that one can think of after Slovak Telekom (C-165/19 P), Servizio Elettrico Nazionale (C-377/20) and Unilever (C-680/20): in order to deem conduct that deviates from competition on the merits to be abusive, there is no need to apply the
essential facilities doctrine (whereby a legitimate decision not to deal on a resource is only abusive if such resource is indispensable for rivals to compete in a market, meaning that the lack of access to it would result in elimination
of competition in this market). However, in my view, AG Kokott takes the scenic route to get to such a (currently) obvious conclusion, and even gets lost on her way there. Perhaps the constraints imposed by the General Court’s
‘ponderous’ (in her words) reasoning or by the appellants’ focus on the need to apply the essential facilities doctrine
are to be blamed. Or perhaps the outcome was so clear in her mind that, among all the arguments leading to it, it proved hard to separate the wheat from the chaff.
The fact is that the reasons put forward to show why the essential facilities doctrine was not applicable to the case seem a bit convoluted. Those reasons may convey the wrong idea that enforcers need to check, first, whether the
practices factually fit into the classic refusal to deal and are thus subject to such doctrine, and, if not, they must then resort to the general exclusionary abuse test (i.e., conduct needs to both deviate from competition on the merits and give rise to potential exclusionary effect to be abusive, per Servizio Elettrico Nazionale). However, it
is rather the opposite: we need to check, first, if there is a deviation from competition on the merits (including whether the dominant company could make the legitimate decision not to deal), and, if so, the finding of abuse
only requires proof of a potential exclusionary effect or, if not, there is only an abuse under the exceptional circumstances postulated by the essential facilities doctrine.
The facts of the case do not need much of an introduction: Google was found by the European Commission to be present in two related sets of national markets for general internet search (all-purpose queries on search engines)
through Google Search, and specialised internet search (internet search related to specific products, services or content – e.g., comparison shopping services) through what ended up being Google Shopping. Google, which
was deemed to be dominant in a number of national markets for general internet search, displayed results from its specialised comparison shopping service in a richer format and in a more visible position on Google Search’s general search result page. Google also applied to them an algorithm (which was not applicable to Google’s
comparison shopping results) which demoted them in Google Search’s general results pages. The algorithm made them less relevant due to inherent features (in particular, using second-hand content which comparison services are naturally liable to use as they list products from other merchants).
www.eulawlive.com
19
The Week
ISSUE Nº10 15-19 JANUARY 2024
As a result, the Commission, endorsed by the General Court, charged Google with an abuse of dominance in
the understanding that its conduct deviated from competition on the merits (as it would be artificial for a search engine to rank results in its general search result pages based on criteria other than relevance – such as favouring its own comparison shopping service). Consequently, the Commission stated that this gave rise to a potential exclusionary effect (as traffic from Google Search was ‘indispensable’ for rival comparison shopping services to
compete with Google’s). Therefore, the Commission and the General Court applied the general exclusionary
abuse test rather than the essential facilities doctrine, which was criticised by Google on appeal before ethe Court of Justice.
In the Opinion, AG Kokott sides with the General Court in concluding that the essential facilities doctrine is
actually not applicable. However, she seems to put the cart before the horse by assessing, in the first place, whether
the conduct either fits the factual scenario of a dominant company’s refusal to deal on some indispensable resource or takes the shape of an independent form of abuse. It is only after having opted for the latter that she looks into whether there is a deviation from competition on the merits and a potential exclusionary effect. This formalistic view could result in at least two undesirable outcomes:
• It appears to lead the AG to ultimately buy (especially in points 81 and 92 of the Opinion) the questionable reasoning that the General Court uses to find a deviation from competition on the merits: it double-thinks
Google Search’s business model as a multi-sided platform and concludes that this should be ranking general
search results based on strict relevance to attract the greatest possible number of internet users. Consequently, it concludes that using ranking to deviate traffic to its comparison service is an ‘abnormal’ thing to do (points 176-179 of the General Court’s judgment), thereby falling outside competition on the merits.
• From a purely legal perspective, it makes the legal test unnecessary awkward by forcing the AG to have
recourse to a case law outlier (Irish Sugar, T-228/97; Compagnie maritime belge, C-395/96 P and C-396/96 P
– interestingly not explicitly quoted). In these cases, Article 102(c) TFEU, forbidding discrimination against
some customers (secondary-line injury), was exceptionally applied to discrimination against competitors
of the dominant company’s business in a related market (primary-line injury) due to the ‘super-dominant’ position of this company (implicit in the ‘indispensability’ of traffic from Google Search for comparison services – point 66 of the Opinion, and expressly mentioned in the General Court’s judgment – point 150 of the Opinion). I suggested the exact same solution, based on Google Search’s gatekeeper position, in a paper
I published seven years ago (Pablo Solano Díaz, 2017), but after Slovak Telekom, Servizio Elettrico Nazionale and Unilever it has become dangerously obsolete.
Indeed, that approach to assessing whether there is competition on the merits is dangerous because it would
ultimately respond to a subjective call by competition authorities (or courts), about the dominant company’s business model from an extra-legal perspective. This would increase the enforcer’s discretion (which is particularly
tempting in digital markets where the indispensability required to apply the essential facilities doctrine is hard to find as competition is one click/swipe away) and make judicial control difficult. The result could eventually be using
www.eulawlive.com
20
The Week
ISSUE Nº10 15-19 JANUARY 2024
the prohibition of exclusionary abuses to pursue objectives others than protecting equally efficient competitors (such as artificially injecting competition – a.k.a. contestability and fairness) which are alien to competition law
and should be fostered by purpose-specific regulation (such as Regulation (EU) 2022/1925 of the European
Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector – the ’Digital Markets Act’).
The alternative approach would be starting off by checking whether the conduct objectively (based on its intrinsic
features, and ‘all the relevant circumstances’ mentioned by the case law – e.g., Unilever, para. 40) constitutes
competition on the merits or not. Only if it does, then the exceptional circumstances under the essential facilities doctrine come into play to decide whether the conduct can still be abusive. Conversely, if the conduct falls outside
competition on the merits, then it is abusive simply if it may give rise to an at least potential exclusionary effect. How can we stay (as much) ‘objective’ (as we can) in judging whether the conduct deviates from competition on the merits? Well, by applying the case law in Slovak Telekom (para. 50), Servizio Elettrico Nazionale (paras. 71
and 79) and Unilever (paras. 37 and 42) – for that matter, coined in Deutsche Telekom (C-280/08 P, paras. 177, 178 and 182) and recently reaffirmed in Superleague (C-333/21, ECLI:EU:C:2023:1011, paras. 127 and 129): a
dominant company’s practice is abusive if no equally efficient competitor can either derive a comparable advantage by doing the same (artificiality/deviation from competition on the merits) or offset such advantage by other means (potential exclusionary effect).
Such an efficiency-based criterion (not to be confused with the as-efficient competitor test) is the backbone
connecting the two limbs of the general exclusionary abuse test and providing an objective (and judicially reviewable) benchmark to judge whether conduct deviates from competition on the merits and is capable to
produce a foreclosure effect (in line with the Darwinian spirit of competition rules to protect equally efficient competitors from artificial advantages). This objective assessment of the deviation from competition on the merits
is completed by pondering over ‘all the relevant circumstances’. The general obligation of equal treatment under
Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down
measures concerning open internet access, and the active change in conduct by Google to favour its comparison service, considered by the General Court as reinforcing the deviation from competition on the merits (para. 154 of the Opinion), could also be accommodated within the assessment of all the relevant circumstances.
In refusal to supply cases, the assessment of all the relevant circumstances requires, in particular, to verify whether the dominant company could legitimately make the decision not to deal. In fact, case law makes clear that there are cases where the dominant company cannot make the legitimate decision not to deal, either because regulation imposes on it an obligation to deal (e.g., Deutsche Telekom), or the resource on which it refuses to deal has been
entrusted by public authorities (Lietuvos geležinkeliai, C‑42/21 P, paras. 86 and 87), or because it has already made
the decision to deal. In the latter scenario, the subsequent decision to stop dealing (e.g., ICI, 6 and 7/73) or to deal
in a discriminatory manner (e.g., margin squeeze cases like TeliaSonera, C-52/09) is no longer protected by the fundamental rights to conduct business and to property under Articles 16 and 17 of the Charter of Fundamental
www.eulawlive.com
21
The Week
ISSUE Nº10 15-19 JANUARY 2024
Rights of the European Union (‘CFREU’), which were already exercised when the first decision to deal was made. Hence, it can be assessed in light on the general exclusionary abuse test, instead of applying the essential facilities
doctrine to strike a balance between those fundamental rights and the general interest in undistorted competition (points 85-87 of the Opinion).
The AG hints at that when she compares Google’s practice with margin squeeze (points 95-96) and refers to it as
an ‘“active” behaviour in the form of positive discrimination’ (points 116). Nevertheless, she fails to provide the general explanation that AG Saugmandsgaard Øe did provide in his Opinion in Slovak Telekom (paras. 66-117), precisely in a margin squeeze case. He distinguished between the original (legitimate) decision not to deal (protected by
Articles 16 and 17 of the CFREU and, thus, subject to the essential facilities doctrine) and the application of unfair contract terms once the decision to deal has already been made (subject to the general exclusionary abuse
test rather than being equated to some ‘implicit refusal to deal’). Contrarily, AG Kokott remains more hesitant
and is forced to rely on an extra-legal judgement call about Google’s practices as ‘unreasonable and discriminatory’ (point 81), its business model as a ‘fundamentally open infrastructure designed to attract a maximum number of
internet users’ (point 92) and its comparison services as not of enough quality (point 97). Therefore, AG Kokott seems to take the arbitrary position that AG Saugmandsgaard Øe warned against in Slovak Telekom (point 91).
That said, I welcome the clarification in para. 70 of the Opinion that the application of the essential facilities
doctrine does not necessarily depend on the remedies (which some commentators have proposed – Pablo Ibáñez Colomo, 2019). For me, the coincidence between the more stringent legal test (essential facilities doctrine) and
active remedies (starting dealing) is rather a consequence than a cause: the essential facilities doctrine applies
where the dominant company can still make the legitimate decision not to deal, which is precisely the case where
the active remedy consisting of stating dealing would be needed (AG Saugmandsgaard Øe’s in Slovak Telekom, para. 101, seems to also point in this direction).
Finally, the analysis of the exclusionary effects is tainted by the AG’s failure to acknowledge that, after Servizio
Elettrico Nazionale and Unilever, the only possible exclusionary abuse test (with variations on the same theme for different categories of abuse, such as tying or loyalty rebates) consists of determining whether the advantage that
the dominant company derives from its conduct cannot be replicated by equally efficient competitors (deviation from competition on the merits) or offset by them through other means (potential exclusionary effect). On the contrary, the AG has to resort to some questionable (in light of case law) reasoning to justify the conclusion by the
General Court that the Commission was right in not applying the as-efficient competitor test: arguing that less
efficient competitors deserve some protection in markets with high barriers to entry and that such test is limited to price abuses (point 195 of the Opinion).
It is striking that the AG follows that reasoning when she could have reached the same conclusion in a case-law-
proof way. Indeed, she could have just held that, in Google’s case, there is no need to apply as-efficient competitor test simply because, even assuming that rival comparison shopping services are more efficient than Google’s, they
do not have their own Google Search send them traffic preferentially and no other comparable source of traffic
www.eulawlive.com
22
The Week
ISSUE Nº10 15-19 JANUARY 2024
exists (it is quasi-indispensable). Hence, in the case at stake, there is no need to assess the relative efficiency of
competitors to conclude that equally (and even more) efficient competitors could not have either obtained a similar advantage or offset it by other means and, thus, the conduct both deviates from competition on the merits and gives rise to a potential exclusionary effect based on an efficiency criterion.
In other words, to exclude the inapplicability of the as-efficient competitor test (which I completely agree with), the AG did not have to (in my view wrongly) suggest in point 195 that the efficiency-based criterion is not
generally applicable to exclusionary abuses, because in the case in hand the inapplicability of the as-efficient competitor test actually confirms the general applicability of the efficiency-based criterion: no competitor could
measure up so obviously equally efficient competitors could not either and, hence, equally efficient competitors could be excluded. This is not called into question by the possibility of taking into account competitive pressure form less efficient competitors among ‘all the relevant circumstances’, which is what the case law cited in point 195
refers to. Then, there is the question about to what extent the potential exclusion of equally efficient competitors who are not able to offset the advantage conferred on Google Shopping by Google Search’s preferential traffic needs to be proven by means of, for example, counterfactual analysis. However, the AG dodges this bullet by (rightly) considering that the specific counterfactual proposed by Google artificially split the effects of prominent display and demotion algorithm and was, therefore, rightly dismissed (points 179-182 of the Opinion).
In conclusion, the reasoning about whether Google’s practice qualifies as competition on the merits is stuck in a formalistic construction based on whether the conduct fits in the classic refusal-to-deal box. Then, the deviation from competition on the merits is based on extra-legal considerations about what Google’s ‘normal’ behaviour
would have been and whether its comparison services had enough quality. However, it would have been much
less arbitrary to work out whether Google could make the legitimate decision to favour its comparison services
to decide whether the essential facilities doctrine was applicable by simple answering the following question: is the plausible rationale behind Google’s diversion of traffic to its general search engine that it trusted that other comparison shopping services could not do the same or offset the competitive advantage derived therefrom?
Otherwise, is there an alternative explanation (objective justification)? In the case at hand, the answer is quite clear: that is certainly a plausible explanation in so far as even more efficient comparison shopping services cannot
derive an equivalent advantage to that resulting from having a super-dominant search engine and cannot offset it, because no other source of traffic compares.
There is no need to carry out any as-efficient competitor test to prove the above so, in order to rule it out, it was
unnecessary for the AG to undermine (in my view contrary to case law and the Darwinian essence of competition
law) the efficiency-base criterion altogether. That approach is in fact implied in points 142-144 of the Opinion, which explicitly recognises the link between the two limbs of an exclusionary abuse, but the opportunity is
missed to contend that such a link is based on an efficiency criterion: Google’s conduct is abusive because Google knows that equally (or more) efficient comparison services cannot generate traffic on their own (deviation from competition on the merits) or replace it efficiently (potential effect).
www.eulawlive.com
23
The Week
ISSUE Nº10 15-19 JANUARY 2024
Pablo Solano Díaz, LLM (College of Europe), is EU and Competition Law Lecturer at several Spanish institutions, and lead antitrust counsel at a technology company. He has nothing to disclose. All opinions expressed are his and do not reflect the position of any of those entities.
SUGGESTED CITATION: Solano, P; “Opinion in Google Shopping: Growing and trimming Occam’s beard and cutting oneself on the way”, EU Law Live, 16/01/2024, https://eulawlive.com/op-ed-opinion-in-google-shopping-growing-and-trimming-occams-beard-and-cutting-oneself-on-the-way-bypablo-solano-diaz/
www.eulawlive.com
24
The Week
ISSUE Nº10 15-19 JANUARY 2024
The Broad Concept of Non-Material Damages under the GDPR: Data Breach Liability and the Legitimisation of Fear (Natsionalna agentsia za prihodite, C-340/21) Laura Somaini On 14 December 2023, the Court of Justice of the European Union (‘the Court’) delivered its ruling in case C‑340/21, clarifying the concept of non-material damages under Article 82 of the General Data Protection Regulation (‘GDPR’) and the rules governing burden of proof. Background The question arose in a dispute between an individual and the Bulgarian National Revenue Agency (‘Agency’), following a cyber-attack to the Agency’s IT systems, which affected more than 6 million individuals, whose personal data were published on the Internet.
The applicant sought compensation for non-material damages allegedly arising from the unauthorised disclosure of her personal data, and argued that the Agency had failed to meet its obligations under Articles 5(1)(f ), 24 and 32 GDPR, concerning respectively the principle of integrity and confidentiality, and the controller’s duties to implement appropriate technical, organisational and security measures.
The applicant claimed that the non-material damage consisted of the fear that the disclosed data might be misused in the future, or that she might be blackmailed, assaulted, or even kidnapped. The Judgment 1. ‘Appropriateness’ of the controller’s measures The Court held that an unauthorised disclosure of personal data by a third party is not sufficient, in itself, to
conclude that the technical and organisational measures implemented by the controller were not ‘appropriate’. Recalling the risk-based approach underpinning Articles 24 and 32 GDPR, the Court recognised that the GDPR
‘establishes a risk management system and that it in no way purports to eliminate the risks of personal data breaches’ (para. 29). Controllers are required to adopt measures to avoid, ‘insofar as it is at all possible’ (para. 30), any data breach, and that the appropriateness of such measures should be assessed, objectively and in practice, in light of the circumstances of the relevant processing activities (paras. 29-30).
www.eulawlive.com
25
The Week
ISSUE Nº10 15-19 JANUARY 2024
Further, the Court admits that the controller has ‘some discretion’ in determining the measures to ensure an
appropriate level of security vis-à-vis the risk, and that a national court should be able to evaluate, in concreto, that assessment (para. 43).
2. Accountability and burden of proof Following a literal interpretation, the Court derives from the principle of accountability that the controller, in the context of an action for damages under the GDPR, bears the burden of demonstrating that its processing activities were subjected to an appropriate level of security (paras. 52-57). 3. Attributability of damage The Court maintains that the fact that the damage resulted from an unauthorised disclosure of data by a third
party, such as in the case of a cyber-attack, does not in itself exempt the controller from liability under Article 82 GDPR. The controller must prove that it is ‘not in any way’ responsible for the damage, as provided by Recital 146
GDPR, and demonstrate the absence of a causal link between the alleged infringement of its obligations, and the damage suffered (paras. 70-74).
4. Autonomous concept of ‘non-material damage’ and fear of potential future misuse On the question of whether the mere fear of potential, future misuse of one’s data constitutes ‘non-material
damage’, the Court found that Article 82 GDPR does not rule out the possibility that a situation where the damage has not yet occurred may be covered, given that the GDPR does not appear to distinguish between the situations where damage (i) has already happened, and (ii) may occur in the future (paras. 79-80).
Referring to Recital 146, which calls for a broad interpretation of the concept of damage, the Court concluded
that a situation where the individual fears that their personal data will be misused in the future may amount to non-material damage (para. 81). Moreover, the Court identifies the mere ‘loss of control’ over one’s data as a type
of damage that may result from a data breach – if not addressed in an appropriate and timely manner – even if the data had not already been misused to the individual’s detriment (para. 82).
The individual must demonstrate that the negative consequences constitute non-material damage, by establishing
the existence of (i) damage, (ii) an infringement of the GDPR, and (iii) a causal link between the two (Österreichische Post, C‑300/21).
Finally, where an individual relies on the fear that their personal data may be misused in the future, the national court must verify that that fear is ‘well founded’ with regards to the specific circumstances of the case and of the individual concerned (para. 85).
www.eulawlive.com
26
The Week
ISSUE Nº10 15-19 JANUARY 2024
Conclusion Controllers will be relieved to learn that an unauthorised data disclosure, in itself, does not automatically mean
that their measures were inappropriate, and that the GDPR does not impose the elimination of any and all risks. Moreover, the Court has now confirmed a broad interpretation of the right to compensation for non-material
damages in a string of cases on the topic. In another decision handed down on the same day, the Court ruled
that compensation should not be subject to de minimis rules, such as the tangible nature of the damage (Gemeinde Ummendorf, C‑456/22, paras. 17-18), although affected individuals ‘must also demonstrate that they have actually suffered such damage, however minimal’ (para. 22). Both judgments build on Österreichische Post, C‑300/21, where
the Court held that, while a mere infringement of the GDPR did not automatically lead to a compensation claim, it was not limited by any ‘threshold of seriousness’.
While these findings will likely pave the way for increasing litigation and claims for non-material damages under
the GDPR, further interpretative guidance can be expected from the Court, as it adjudicates more cases in the coming years.
Laura Somaini is an Associate at a law firm in Brussels and holds an LL.M. in EU Law from the College of Europe (Bruges). She has published contributions in EU data protection law and tech regulation.
SUGGESTED CITATION: Somaini, L.; “The Broad Concept of Non-Material Damages under the GDPR: Data Breach Liability and the Legitimisation of Fear (Natsionalna agentsia za prihodite, C-340/21)”, EU Law Live, 18/01/2024, https://eulawlive.com/analysis-the-broad-concept-of-non-materialdamages-under-the-gdpr-data-breach-liability-and-the-legitimisation-of-fear-natsionalna-agentsia-za-prihodite-c-340-21-by-laura-somain/
www.eulawlive.com
27
SYMPOSIUM ON EU ENLARGEMENT
28
The Week
ISSUE Nº10 15-19 JANUARY 2024
The quagmire of EU rule of law enforcement: Limits to jurisdictional enforcement, limited deterrence capacity and asymmetry Carlos Closa This Op-Ed is part of a Symposium on EU Enlargement, which will take place over the next two months. See also previous Op-Eds by Franz Mayer and Thu Nguyen and by Gavin Barrett. More contributions will follow shortly on EU Law Live.
The experience of the last decade shows that any meaningful treaty revision concerning enforcement of rule of law compliance by Member States must satisfy three requirements. First, it must rely on a solid institutional procedure that secures results and prevents regressions. Second, it must possess enough deterrence power so as to prevent
deviations from rule of law compliance without necessarily activating enforcement mechanisms. Third, it must be
workable despite EU asymmetries. Hence, the challenge that governments face is how to create an enforcement mechanism that carries enough deterrence power regardless of EU imbalances. Jurisdictional enforcement … and its limits Scholars have been critical of the capacity and/or willingness of EU institutions (Commission and Council)
to effectively implement enforcement against rule of law breaches. Evidence shows multiple instances of ill performance. The Commission does not present a glamorous record as an enforcer because of its calculus of the
positions of national governments and the required support for its actions in this and other areas. The Council, in turn, depends on a logic of collective action where the cost of action for any government largely outweighs any benefits. This has naturally led to calls for an enhanced role for the Court of Justice within the enforcement
system, for instance via the so-called systemic infringement procedure (Scheppele; 2016). Certainly, the Court’s record as enforcer looks brighter, particularly in those cases in which it has been able to set financial penalties. But
even in these cases, governments in Hungary and Poland have remained defiant of enforcers’ authority, engaging
in ‘creative compliance’ (i.e. formal adoption of norms that does not lead to substantive changes; Batory, 2016). This raises a non-irrelevant question: how can the EU secure compliance with Court rulings by governments
that, precisely, challenge the Court’s authority and the authority of the very law that legitimizes that institution? The real dilemma behind rule of law enforcement is whether enforcement can be secured in the absence, in the
last instance, of coercion instruments (i.e. law enforcement authorities such as ‘police’ and similar). Coercion is required as part of enforcement mechanism to ensure that ‘violations of the law’ are deterred.
www.eulawlive.com
29
The Week
ISSUE Nº10 15-19 JANUARY 2024
Deterrence. As a proxy to understand enforcement of rule of law violations, Dan Kelemen has put on the spotlight the
economic theory of crime and punishment (Becker; 1968). This theory revolves around the notion of deterrence (which scholars of security studies had also developed earlier): the threat of punishment will be enough to prevent
crime precisely because of the fear of being effectively punished. The fear of being punished plays a central role for effective compliance and this fear (after all, a belief of actors) derives from a calculus (accurate or not) of: (a)
the possibility of actually being punished; i.e. the existence of real punishment capacities; (b) the will of enforcers to activate punishment. This creates a ‘self-enforcing’ equilibrium that constitutes the political foundation of democracy and the rule of law (Weingast; 2014)
How do those two elements of the fear of punishment as the basis of deterrence work in the case of EU rule of law violations by rogue governments? We cannot really know what rogue governments infringing rule of law
mandates think about the EU’s will to punish them. But an undisputable fact is that they have adopted a deeply defiant attitude that differs radically from other cases of non-compliance with EU law, and even of no-compliance
with ECJ enforcement measures. Without precising too much, these governments have ignored, attacked and not complied with EU Commission measures; they have plainly disregarded EP authority; and they have openly challenged the authority of the ECJ and its rulings. Defiant non-compliance characterizes rule of law systemic breaches by rogue governments. This attitude reveals a belief on the lack of EU capability to punish them.
As for the existence of real EU punishment capacities that can reinforce the credibility of its deterrence, the ‘toolkit of EU enforcement mechanisms’ has proved its limited capacity. This comprises also infringement procedures even
when they reached the ECJ stage. The exceptions are, naturally, the cases in which the ECJ could impose fines. More importantly, the recently developed rule of law spending conditionality, constructed around the Recovery
and Resilience Facility (RRF) and the ‘Rule of Law Conditionality Mechanism’ have proved comparatively more
powerful instruments.[1] So, one could be tempted to conclude that the EU could construct its deterrence
capacity around financial sanctions and the withholding of funds relying on proactive EU institutions. Whether
institutions are more proactive or this is rather a momentary situation remains to be seen. More importantly, financial sanctions may be related to the relative conditions (e.g. budgetary position or voting weight in the Council, inter alia) of different member states. Asymmetry Considering size and power, the EU is a highly asymmetric system of states. Size matters (as translated, for instance, under the vote distribution in qualified majority voting) as does power (however difficult this is to
define or even grasp) and the financial position of states (i.e. net contributor vs. net beneficiary). Asymmetry may be hypothetically irrelevant as regards to compliance and, in fact, research on the topic has not identified a
pattern that relates compliance to size (even though larger states are occasionally more lenient that smaller ones).
Hypothetically at least, enforcement is also blind towards size and power considerations and, more importantly, enforcement tools (such as infringement actions) seem to have similar force regardless those two attributes.
www.eulawlive.com
30
The Week
ISSUE Nº10 15-19 JANUARY 2024
However, as discussed above, experience shows that so far financially related enforcement mechanisms (such as sanctions or withholding money) have been the most efficient. But, of course, if funds/money is the efficient
enforcement mechanism, much will depend on how much a member state depends upon them (in the case of
structural funds, conditionality) or, again, the will of a state to pay, or of the Union to collect the money. The relative success of money-based enforcement may be because funds are particularly important in the case of Hungary and Poland (also to maintain the so-called authoritarian equilibrium; Kelemen; 2020), which have a higher reliance on EU cash and/or smaller economies. But how credible is this mechanism in the case of larger or less financially dependent member states?
Can the quagmire be resolved? Institutionally adjusting enforcement by adding coercion powers could do the trick, but this implies a deep turn towards a real federation (on the US model) in which federal powers may
overrule national decisions. Whether this is desirable and/or feasible is a different question and one may anticipate
a negative response. Given that this would require a significant reform of the treaties under unanimity conditions, the safe conclusion is that this may not happen at all. Hence, an enhanced enforcement capacity may work on the
other two components of the dilemma. Increased deterrence could work around an instrument that sounds like
“real” punishment: expulsion There are sound reasons to propose this remedy in extreme situations; for instance,
one may wonder whether the EU could/should tolerate authoritarian/totalitarian governments. Naturally, expulsion would depend on treaty reform, again, under unanimity: given the limits posed to real treaty reform, expulsion could only be possible as a ‘re-foundation without rogue states’. And of course, the will to activate this sort of punishment will depend very much on realpolitik considerations. Expulsion may become a strong tool
against backsliding small and/or less wealthy member states but not for others. Lately, what is in question are the limits of a community (the EU) that has defined itself as essentially a ‘community of law’. When respect for the law fails, little seems to remain to keep the community.
Carlos Closa is Vice-President of the Spanish National Research Council (CSIC) where he is also professor at the Institute for Public Goods and Policies (IPP)
[1] Rule of law spending conditionality can be found in three instruments applicable in relation to the 2021-2027 budgetary cycle: the mechanism set up by Regulation 2021/241, the framework contained in Regulation 2020/2092, and the CFRrelated “horizontal enabling condition” found in Regulation 2021/1060.
SUGGESTED CITATION: Closa, C; “The quagmire of EU rule of law enforcement: Limits to jurisdictional enforcement, limited deterrence capacity and asymmetry”, EU Law Live, 15/01/2024, https://eulawlive.com/op-ed-the-quagmire-of-eu-rule-of-law-enforcement-limits-to-jurisdictional-enforcementlimited-deterrence-capacity-and-asymmetry/
www.eulawlive.com
31
THE LONG READ
32
The Week
ISSUE Nº10 15-19 JANUARY 2024
The EU’s Agency for Fundamental Rights – the past, the present and the future of an atypical “agency” John Morijn and Gabriel N. Toggenburg1 1. Introduction The European Union’s law and policies in the fundamental rights area have developed tremendously over the last 20 years. Human and fundamental rights have moved from the periphery into the centre of external and internal
policy making.2 The European Union Agency for Fundamental Rights (“FRA”), established in 2007 is a concrete institutional expression of this trend.
Recently the Agency was equipped with a new mandate3 and soon a new, the Agency’s third, Director will take
office.4 Moreover, in 2024 the Agency will face a new European Commission and a newly composed European
Parliament. It appears therefore timely to give a brief assessment on where the Agency stands today and where it might develop in the years to come. Before doing so we briefly recall the Agency’s foundation. 2. The Agency’s past: origins and mandate Back in 1998, a group of prominent human rights experts called on the EU to develop a ‘comprehensive
and effective internal human rights policy’. In their view, the deepening of the EU (single market, increasing cooperation in the area of policy and security matters, increasing powers of the EU administration), the upcoming
enlargement but also the political trends of increasing ethnic hatred within Europe as well as ‘the tendency towards a “fortress Europe” which is hostile to “outsiders” and discourages refugees and asylum-seekers’ required
a new comprehensive policy. Their recommendation was for it to include the creation of a ‘European Union Gabriel N. Toggenburg is an Honorary Professor for Human Rights and European Union Law at the University of Graz and Head of Sector Human Rights Structures and Mechanism at FRA. All views expressed here are of a strictly personal nature and can by no means be attributed to FRA. John Morijn is a Fellow in Law & Public Policy at the Princeton School of Public and International Affairs and a Professor of law & politics in international relations at the University of Groningen. He is also chairing the Scientific Committee of the FRA. All views expressed here are of a strictly personal nature and can by no means be attributed to FRA. 1.
2. For a recent overview and assessment see e.g. Gabriel N. Toggenburg, The EU Human Rights regime: development,
actors, policy framework and effectiveness, Bård A Andreassen (ed.), Politics of international human rights law: Governance, distributive justice and international relations, Ed Elgar Series on Research Handbooks in International Human Rights Law 2023, pp. 409-439. 3. See Council Regulation (EU) 2022/555 of 5 April 2022 amending Regulation (EC) No 168/2007 establishing a European
Union Agency for Fundamental Rights.
4. On 15 December 2023 the agency’s Management Board appointed Sirpa Rautio as the third Director of FRA (after
Morten Kjaerum and Michael O’Flaherty). She is currently Director of the Finnish Human Rights Centre and Chair of the European Network of National Human Rights Institutions (ENNHRI). The new Director will take office in March 2024. www.eulawlive.com
33
The Week
ISSUE Nº10 15-19 JANUARY 2024
Human Rights Monitoring Agency’ based on the then-existing European Monitoring Centre on Racism and
Xenophobia (the EUMC located in Vienna).5 The idea did not raise major interest but the straw-fire of the first
rule of law debate in the context of the so called ‘Austrian crisis’ in 2000 provided oxygen to the idea of a body that could provide reliable data and analysis in order to objectively assess Member States’ performance in relation
to the EU’s foundational values.6 Finally, in 2007 a European Union Agency for Fundamental Rights (FRA) was
established. However, its tender mandate raised the question whether this new actor would just debate the ‘Sex of Angels’ or indeed help to improve Europe’s Human Rights Performance?7
The Agency differs from others in terms of its institutional design. The members of its Management Board are independent experts, it has a dedicated Scientific Committee to ensure scientific soundness of output consisting of independent scholars, and, finally, the Agency has to ‘fulfil its tasks in complete independence’.8 The normative basis of the FRA consisted of a Founding Regulation, a Multiannual Framework and the Agency’s rules of
procedure. The Founding Regulation establishes as the Agency’s very objective the provision of ‘assistance and expertise in the field of fundamental rights’ to institutions and bodies of the (then) EC as well as to its Member
States (not however to third States, avoiding an all too large overlap with the territorial scope of the Council
of Europe). The Agency’s mandate is to support and encourage the EU and its Member States ‘to fully respect fundamental rights’ within their respective fields of competence. A rather weak legal mandate (no quasi-judicial functions, no binding decisions, no mandate to deal with individual complaints, no systematic screening of draft
EU legislation) was thus combined with a wide substantial purview allowing the Agency to provide its ‘assistance and expertise’ across all EU fundamental rights. In fact, the very general formulation of the objective of the
Agency’s mandate is its very beauty allowing for a remarkable degree of flexibility. It has led the Agency to publish incident reports on specific issues or on fundamental rights issues in single Member States, create large (admittedly, not uncostly) convening formats like the Fundamental Rights Forum, establish (admittedly just
temporary) field presences in Italy and Greece or formally submit (admittedly, so far only once) written evidence and analysis as well as oral input in a hearing before the Court of Justice of the EU.9
This all signals that the potential of the Agency is remarkable. Nevertheless the ‘mandate of FRA’ remained a
topic that attracted opposing views and, even worse, myths that re-appeared like an undead. It was for instance regularly argued that the Multiannual Framework (a Council decision that would every 5 years list the key
5. Alston and Weiler, ‘Leading By Example: A Human Rights Agenda for the European Union for the Year 2000’ (Florence: European University Institute, 1998. 6. Gabriel N. Toggenburg, “La crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni”, 2 Diritto pubblico comparato
ed europeo (2001), 735–756.
7. Gabriel N. Toggenburg, ‘The Role of the New EU Fundamental Rights Agency: Debating the‘Sex of Angels or Improving Europe’s Human Rights Performance?’, 3 ELR (2008), 385–398. 8. Art. 16 of the Council Regulation (EC) No 168/2007 of 15 February 2007 as amended by Council Regulation (EU)
2022/555 of 5 April 2022 (the consolidated version of the founding regulation is available here).
9. Concerning C-817/19 concerning the interpretation and validity of the PNR Directive (Grand Chamber ruling delivered on 21 June 2022).
www.eulawlive.com
34
The Week
ISSUE Nº10 15-19 JANUARY 2024
thematic areas of the agency’s activities) would compromise the Agency’s independence;10 that the Agency could not issue country-reports; or that the Agency could not deal with the fundamental rights compatibility of draft EU legislation.11 Another evergreen was the question, whether the Agency would after the entry into force of the
Lisbon treaty hold a mandate to deal – upon request – with matters of police and judicial cooperation in criminal matters. The legal services of Council and European Parliament replied in the negative to this question whereas the lawyers of the Commission and the Agency argued that 1 December 2009 had automatically ‘Lisbonised’ the
Agency’s mandate and expanded it towards the third pillar – a view that was soon confirmed by the institutional practice with even the Council requesting the Agency to become active in this policy field of obvious fundamental rights relevance.
While the views on what the Agency is (and, consequently, expectations vis-à-vis it) differed, soon an agreement
among stakeholders emerged: the Agency proved a success story. It developed into a trusted partner and a reliable
source of information and data across the entire spectrum of actors. Two independent external evaluations based on hundreds of interviews applauded the quality of the Agency’s work and recognised its added value in the EU’s fundamental rights landscape.12 But it was necessary to further strengthen it. 3. The Agency’s present: current priorities and challenges In April 2022 a Regulation entered into force revising the Agency’s mandate. The revision was designed by
the Commission as a technical facelift adapting it with some delay to the Post-Lisbon-reality. While major mandate limitations (such as the fact that FRA opinions on draft EU legislation require a prior formal request
by the Commission, the Council or the Parliament) remained intact, some heavy ballast was thrown overboard. The revised Founding Regulation does away with the highly inefficient requirement to agree every 5 years in the Council on the key thematic areas of the Agency’s activities. The programming is now in the hands of the
Agency’s Management Board. Secondly, the Regulation clarified that indeed the mandate of the Agency extends
to the former third pillar (while stating - that the former second pillar, the common foreign and security policy is beyond the reach of the Agency – in this sense the reform was a pyrrhic victory). Thirdly it introduced a series of
technical adjustments throughout the text. All in all, a relevant but rather unexciting development – the technical reform the Commission envisaged from the outset.
10. What was compromised was the agency’s autonomy, not its independence. On this important distinction see Toggenburg, Grundrechteschutz durch Menschenrechtsinstitutionen: Die EU und ihre Grundrechteagentur, in Christoph Grabenwarter (ed.), Enzyklopädie Europarecht Europäischer Grundrechteschutz, Band 2 der Enzyklopädie Europarecht, Nomos, 2021, S. 1231-1259, at 1242-1244.
11. Of course, the devil is in the detail. To give an example: while the Agency is explicitly excluded from mimicking the Court of Justice by dealing with the legality of EU acts, it can very well be requested by the EU co-legislators to take a position on the ‘compatibility’ of aspects of draft EU legislation with fundamental rights (as in fact the Agency has often done, for a list of such opinion see here). 12. The 1st independent external evaluation by Ramboll (November 2012) is available here, the 2nd independent external
evaluation by Optimity (October 2017) is available here.
www.eulawlive.com
35
The Week
ISSUE Nº10 15-19 JANUARY 2024
This recently adapted mandate has now taken shape in a quite ambitious strategy adopted by the Management Board (2023-2028). It covers 10 points under 3 general headings. Basically, the Agency will continue to
‘produce information on fundamental rights issues and trends’, ‘provide decision-makers with independent advice and opinions’, ‘carry out research and foresight studies’ (with the latter being a new element), ‘support
the implementation of EU laws and policies’ but also to integrate the fundamental rights perspective at EU and
national levels. The Agency will assist both the EU and its Member States with the implementation of ‘practical
measures to address fundamental rights risks and challenges’. It will continue raising awareness among rights holders and duty bearers and promote dialogue with key partners. At the same time, it promises to stay faithful to its commitment to impeccable research quality by further developing ‘research methods and tools on fundamental rights, including benchmarking, assessment, due diligence tools and fundamental rights indicators’.
Indeed, a look in the Agency’s upcoming 2024 work programme shows a wide spectrum of activities. The results
of its third, huge LGBTI survey will be published just as the results of the third survey on antisemitism. The next round of its Roma survey will be launched and women’s experience with regard to violence will again be surveyed
(though not in all Member States). The Agency will continue to address hate crime and hate speech by also providing technical assistance. It will start strengthening its profile on social rights, moving beyond the field of children rights. In the area of criminal law, the Agency will continue its work on detention conditions (including
its database in that regard) and disseminate its findings on the application of the European Arrest Warrant and victims’ rights. Other new FRA findings to be released in 2024 concern experiences with the General Data
Protection Regulation ( GDPR) or the effects of remote biometric identification systems. In the area of asylum
and migration the agency will continue to provide targeted fundamental rights assistance and expertise and
provide support to Schengen evaluations. It will further expand its arsenal of training tools, including on the EU Charter of fundamental rights. The agency will also remain a major convening space in the fundamental rights arena - 2024 will see in April the 4th (physical) Fundamental Rights Forum take place and at the end of the year the 2nd (virtual) annual CharterXchange.
Against the background of this quite massive workload, it is interesting to note that the Agency carries out
only a part of its activities at its own initiative. Many activities are requested by EU institutions, especially the European Commission. And the appetite for FRA input appears to grow. In fact, the requests by EU institutions
are recently corroborated by requests laid down directly in binding EU legislation. This recent trend is visible
in policy areas such as migration and asylum, sustainable finance and corporate sustainability, digital services or police and judicial cooperation and concerns FRA’s contribution to training (the Europol regulation requires that the training of Europol staff ‘shall be developed in cooperation’ with FRA13), the compulsory consultation of the agency before acts may be issued (for instance, the Directive on Corporate Sustainability requires the European
Market and Security Agency to consult FRA before issuing any guidelines).14 Other EU legislation calls on the
Agency to sit as permanent members or observers on various boards. For instance, FRA is part of the Consultative 13. Art. 41 d of regulation (EU) 2022/991.
14. Art. 28 d of Directive (EU) 2022/2464. For the EBCGA see also Art 76 (1) of Regulation (EU) 2019/1896.
www.eulawlive.com
36
The Week
ISSUE Nº10 15-19 JANUARY 2024
Forums of both the European Asylum Agency1 and of the European Border and Coast Guard Agency,2 it is also
requested to be part of the Platform on Sustainable Finance3 and the ETIAS Fundamental Rights Guidance Board.4 The EBCGA regulation even refers to FRA as contributing with experts to ‘migration management support teams’ that provide technical and operational reinforcement to Member States.5
In this light it appears quite concerning that the Agency’s budget has remained unchanged over the years – in stark contrast to that of other JHA agencies. In fact – as it was observed not only in academia6 with utmost concern – looking at the overall constellation of all JHA agencies the FRA’s share of the total budget is constantly
declining and in fact dwarfed by some EU agencies whose mandate appears to correspond more to current
political priorities (the 2023 budget of the EBCGA equals to 34 annual budgets of the FRA). Keeping the Agency’s budget out of sync with the growth of its tasks is not only in contradiction with relevant international standards but also a risk to the FRA’s appropriate delivery on core commitments. 4. The Agency’s future: potential scenarios For the Agency’s future one may identify 3 potential scenarios: the development of the Agency’s institutional practices on the basis of its current mandate (‘status quo plus’), the revision of its mandate to further strengthen
it (‘FRA plus’) or upgrading the Agency to a full-fledged fundamental rights authority as recently requested by
LIBE (‘new fundamental rights authority’), ideally laid down in EU primary law. These are not excluding each other. Rather, they could be seen as a roadmap. a. Status quo plus To remain able to deliver on its tasks to the same degree of satisfaction expressed in the past two external evaluations, the Agency will have to ruthlessly prioritise amongst its numerous thematic projects and many
activities. At the same time, it will be key to make clear to the EU budgetary authorities that taking fundamental
rights seriously requires proper funding of the EU’s own fundamental rights bodies in a way commensurate with
the EU’s obligation of signalling its dedication to Article 2 TEU founding values. In addition, it will be key to
further develop channels for additional funding by continuing the fruitful cooperation with the Norway Grants. Additional avenues could be explored by expanding the cooperation with more resource-rich actors such as the EBCGA. Where the Agency’s mandate has weaknesses – for instance in the limitation of submitting opinions on 1. Art 50 (3) of Regulation (EU) 2021/2303.
2. Art 108 (2) of Regulation (EU) 2019/1896.
3. Art. 20 (1) lit. a iv) of Regulation (EU) 2020/852 (Taxonomy Regulation). 4. Art. 10 (1) of Regulation (EU) 2018/1240. 5. Art 2(19) of Regulation (EU) 2019/1896.
6. See the calculations in Jan Wouters and Michal Ovádek, ‘Exploring the Political Role of the EU Fundamental Rights Agency: Mandate, Resources and Opportunities’, in R. Byrne et al., Human Rights Law and Evidence-Based Policy. The Impact of the EU Fundamental Rights Agency, Taylor & Francis 2019.
www.eulawlive.com
37
The Week
ISSUE Nº10 15-19 JANUARY 2024
draft EU legislation at the agency’s own initiative – more flexible modes of cooperation ‘with Brussels’ could be envisioned to make sure that the Agency’s input reaches all the relevant corners of the EU’s institutional system at the right time.
b. Fundamental Rights Agency plus Whereas the last revision of the Agency’s mandate was useful, various issues remained unaddressed. The European
Parliament, for instance, not only called on the Commission to ‘allocate the FRA an adequately increased budget, in order to fully fulfil its role’ but also to launch a ‘more comprehensive and ambitious revision’ of the Regulation.7
For instance, it called for the right of its LIBE Committee to nominate a member of the FRA Management
Board as is the case in the context of other agencies. Importantly, the Parliament points to a problematic aspect of the recent revision of the agency’s mandate, namely that the regular independent external evaluation is now to
be commissioned by the Commission (and no longer by FRA). The Parliament calls on the legislator to provide the agency with the mandate to issue opinions on legislative proposals on its own initiative and to comment and
contribute to proceedings under Article 7 TEU. Finally, Parliament advocates that also individual Member States, or a group of Member States, should have a right to request FRA to become active. In terms of the agency’s territorial scope, the Parliament argues for also including third countries beyond the Western Balkans such as
European Economic Area/European Free Trade Association countries, the UK, or — where deemed appropriate
by the FRA Management Board — countries covered by the European neighbourhood policy. These appear to be sensible proposals which would not change the Agency’s nature. c. A new Fundamental Rights Authority Should the EU want to lead by example and signal maturity and self-confidence, it could become the first international organisation equipped with its own full-fledged human rights institution. This seems timely
given that the EU is increasingly taking up human rights obligations at UN (Convention of the Rights of Persons with Disabilities) and Council of Europe (Istanbul Convention, ECHR) levels. Just as it is recognised that national NHRIs have a ‘great potential and impact’8 for the effective implementation for the ECHR and
the supervision of the execution of judgments by the ECtHR, a full-fledged EU level Human Rights Institution would signal that the EU takes its own human rights responsibility very serious.
Preparing Parliament’s position on the future amendment of the EU Treaties, its LIBE Committee proposed
changing the EU Treaties to allow for ‘the setting up of a European Union Authority for Fundamental Rights, 7. European Parliament resolution of 20 May 2021 on the proposal for a Council regulation amending Regulation (EC) No
168/2007 establishing a European Union Agency for Fundamental Rights (COM(2020)0225 — 2020/0112R(APP)).
8. See Recommendation CM/Rec(2021)1 of the Committee of Ministers to member States on the development and
strengthening of effective, pluralist and independent national human rights institutions adopted by the Committee of Ministers on 31 March 2021. The recommendation refers explicitly to “third party intervention before the European Court of Human Rights (on the basis of the Article 36, paragraph 2, of the Convention) and communication with regard to the supervision of the execution of judgments under Article 46, paragraph 2, of the Convention”. www.eulawlive.com
38
The Week
ISSUE Nº10 15-19 JANUARY 2024
enshrining its independence and introducing the ordinary legislative procedure for adopting and amending its mandate’. The Committee advocates for the agency to become ‘an independent human rights authority, similar to national human rights institutions and in line with the UN General Assembly’s Paris Principles of 1993, to
protect and promote the EU Fundamental Rights Charter throughout the policies and practices from Union institutions, bodies, offices and agencies, and from Member States when implementing Union law’. The Agency
should be entitled to bring actions under Article 263 TFEU ‘on grounds of infringement of the Charter’; to ‘handle complaints’; and to consult, as a matter of principle, the Commission ‘when preparing proposals for legislative acts or recommendations which have an impact on fundamental rights’ 10.
1
Conclusion The concerns that led to calls for the establishment of the FRA are as acute 20 years on. In fact, the increasing
digitalisation of our lives is posing new threats while old challenges continue. Amongst the latter are violence and harassment on the grounds of gender and sex, various forms of discrimination, racism, antisemitism and
attacks on Jews, unacceptable high levels of inequality and poverty, anti-Roma discrimination and segregation in housing to name just a few. The hatred and the tendency towards a ‘fortress Europe’ are nowadays even more of
a concern and they are coupled with unprecedented phenomena of rule of law backsliding and migration-related fundamental rights scandals of unknown dimension. In all these areas the EU’s role and impact has increased over
the years. The FRA has been tremendously instrumental in informing the EU-level policy and political debate with comparative and objective data and providing valuable evidence-based policy advice. To fully walk their
fundamental rights talk, however, in 2024 the new EU institutions will need to equalise the FRA’s budgetary
position to that of other JHA agencies, and in doing so, bring it to the level of the relevance of the agency’s tasks.
SUGGESTED CITATION: John Morijn and Gabriel N. Toggenburg: “The EU’s Agency for Fundamental Rights – the past, the present and the future of an atypical “agency””, EU Law Live Weekend Edition nº 170, https://eulawlive.com/weekend-edition/weekend-edition-no170/
10. Opinion of 10.2.2023 of the Committee on Civil Liberties, Justice and Home Affairs for the Committee on Constitutional
Affairs, Proposals of the European Parliament for the amendment of the Treaties, (2022/2051(INL)), Paras 13 and 5. Note that these proposals are not reflected in the resolution as recently adopted in the Plenary. www.eulawlive.com
40
HIGHLIGHTS OF THE WEEK
41
The Week
ISSUE Nº10 15-19 JANUARY 2024
403 legal challenges against European Parliament’s pension decisions Monday 15 January
The General Court will hear 403 actions against the European Parliament, challenging the legality of a Payment Notice
issued on the basis of Article 76(1a) of the Implementing Measures for the Statute for Members of the European Parliament: Case T-620/23 to Case T-1023/23. Read on EU Law Live
Council Decision and Regulation concerning sanctions against individuals and legal entities undermining the peaceful transfer of power in Guatemala, published in OJ Monday 15 January
The Official Journal of the EU published Council Decision (CFSP) 2024/254 and Council Regulation (EU) 2024/287, both concerning restrictive measures in view of the situation threatening democracy and the rule of law in Guatemala. Read on EU Law Live
Preliminary ruling request concerning compensation for the unlawful enforcement of a measure for the detention of a foreign national Monday 15 January
Official publication was made of a preliminary ruling request from the Rechtbank Limburg (Netherlands) lodged on 13 November 2023 concerning the interplay between the Return Directive, the Charter of Fundamental Rights, and the legality of detention measures when a successful removal becomes improbable: Zhang (C-669/23). Read on EU Law Live
Preliminary reference on the interpretation of rules concerning infringements of the Fourth Anti-Money Laundering Directive Monday 15 January
Official publication was made of a preliminary ruling request concerning the interpretation of Article 59 of Directive
2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing: Lietuvos bankas (C-671/23). Read on EU Law Live
Request for preliminary ruling concerning the temporal aspects of granting State aid, published in OJ Monday 15 January
A request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia), lodged on 6 November 2023, concerning the interpretation of EU State aid rules was officially published in the OJ: TOODE (C-653/23). Read on EU Law Live
www.eulawlive.com
42
The Week
ISSUE Nº10 15-19 JANUARY 2024
Commission maintains data flow adequacy with eleven third countries and territories Monday 15 January
The Commission successfully completed its review of adequacy decisions for eleven third countries and territories, including
Andorra, Argentina, Canada, Faroe Islands, Guernsey, Isle of Man, Israel, Jersey, New Zealand, Switzerland, and Uruguay, which ensure the continuous flow of personal data from the EU. Read on EU Law Live
Court of Justice clarifies conditions for international protection for women suffering from gender-based domestic violence Tuesday 16 January
The Court of Justice delivered its judgment in Intervyuirasht organ na DAB pri MS (Women victims of domestic violence)
(C-621/21), regarding the conditions for granting international protection under Directive 2011/95/EU on international protection in the case of domestic violence against women. Read on EU Law Live
Court of Justice streaming today’s Grand Chamber hearing of case regarding the selection criteria (independence and competence) of candidates for appointment at the General Court Tuesday 16 January
The Court of Justice’s Grand Chamber hearing in Valančius (C-119/23), a case concerning a request from the referring court, the Vilniaus apygardos administracinis teismas (Lithuania), seeking clarification on the selection criteria established by a Member State when appointing a judge at the General Court, was streamed on the Court’s website. Read on EU Law Live
Commission Recommendation on means to address the impact of automation and digitalisation on the transport workforce, published in OJ Tuesday 16 January
The European Commission issued a comprehensive recommendation, dated November 29, 2023, to address the multifaceted
impact of automation and digitalisation on the transport workforce, aligned with the Sustainable and Smart Mobility Strategy. Read on EU Law Live
www.eulawlive.com
43
The Week
ISSUE Nº10 15-19 JANUARY 2024
Court of Justice: Parliamentary committee must be supervised by national data protection authority to ensure compliance with GDPR requirements Tuesday 16 January
The Court of Justice, sitting in its Grand Chamber, handed down its judgment in a case concerning the scope of application
of Article 16(2) TFEU and, consequently, the GDPR, in the context of activities of a committee of inquiry, set up by a
Parliament of a Member State in the exercise of its right to scrutinise the executive: Österreichische Datenschutzbehörde (C33/22).
Read on EU Law Live
ECtHR delivers judgment in Rizzo and Others v. Malta on the effectiveness of an appeal to the Constitutional Court Tuesday 16 January
The European Court of Human Rights (ECtHR) delivered a judgment in Rizzo and Others v. Malta, a case revolving around the effectiveness of an appeal to the Constitutional Court concerning old rent laws and their compatibility with Article 1 of Protocol No. 1 ECHR.
Read on EU Law Live
Strengthening cooperation on internal security threats: Commission Recommendation 2024/268, published in OJ Wednesday 17 January
Official publication was made of Commission Recommendation (EU) 2024/268 on cooperation between the Member States with regard to serious threats to internal security and public policy in the area without internal border controls. Read on EU Law Live
Commission issues Recommendation (EU) 2024/214 on guidelines for dual-use item control report Wednesday 17 January
Official publication was made of Recommendation (EU) 2024/214 of January 10, 2024 on guidelines setting out the
methodology for data gathering and processing for the preparation of the annual report on the control of exports, brokering, technical assistance, transit and transfer of dual-use items pursuant to Regulation (EU) 2021/821 of the European Parliament and of the Council.
Read on EU Law Live
www.eulawlive.com
44
The Week
ISSUE Nº10 15-19 JANUARY 2024
Commission Notices initiating expiry review of anti-subsidy measures on e-bikes imported from China, published in OJ Wednesday 17 January
Official publication was made of two Notices of initiation of an expiry review of the anti-subsidy measures applicable to imports of electric bicycles originating in the People’s Republic of China. Read on EU Law Live
Two Council Implementing Regulations specific and additional restrictive measures against persons and entities affiliated with terrorist organisations, published in OJ Wednesday 17 January
The Official Journal of the EU published two Council Implementing Regulations concerning the specific and additional imposition of sanctions against certain persons and entities with the aim of combating terrorism. Read on EU Law Live
General Court dismisses Eva Kaili’s action against the European Chief Prosecutor and European Parliament regarding the lifting of her parliamentary immunity Wednesday 17 January
By its order, the General Court dismissed the action brought by Eva Kaili against the European Chief Prosecutor and European Parliament as inadmissible in its entirety because it deemed the contested acts to not be open to challenge. Read on EU Law Live
General Court rejects legal challenge against EU approval of carbendazim in biocidal products Wednesday 17 January
The General Court delivered its judgment in Troy Chemical Company and Troy v Commission (T-297/21) concerning an action
under Article 263 TFEU seeking annulment of Commission Implementing Regulation (EU) 2021/348, which approves carbendazim as an existing active substance for use in biocidal products of product types 7 and 10. Read on EU Law Live
Commission approves Renfe’s amended commitments relating to alleged abuse of dominant position in online passenger rail ticket distribution market Wednesday 17 January
The European Commission made commitments by Renfe legally binding under EU antitrust rules relating to the prohibition of abuse of dominant position in the rail transport services market. Read on EU Law Live
www.eulawlive.com
45
The Week
ISSUE Nº10 15-19 JANUARY 2024
Council and Parliament reach provisional agreement on stricter anti-money laundering rules Thursday 18 January
The Council and Parliament reached a provisional agreement on an extensive anti-money laundering (AML) package aimed at safeguarding EU citizens and the financial system from money laundering and terrorist financing. Read on EU Law Live
EDPB’s coordinated enforcement action identifies areas for enhancing DPO role Thursday 18 January
The European Data Protection Board (EDPB) released a report based on its second coordinated enforcement action, focusing on the designation and position of Data Protection Officers (DPOs). Read on EU Law Live
RTL Nederland: Confidentiality framework in Regulation on occurrences in civil aviation is compatible with fundamental rights Thursday 18 January
On 18th January, the Court of Justice delivered its judgment in RTL Nederland and RTL Niewus (C-451/22), a case concerning the disclosure of information under Regulation 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation.
Read on EU Law Live
ESA decision regarding alleged State aid concerning the Icelandic telecommunications sector, published in OJ Thursday 18 January
Official publication was made of the EFTA Surveillance Authority (‘ESA’) Decision No. 086/23/COL of 21 June 2023 on alleged State aid to Gagnaveita Reykjavíkur (Iceland), a telecommunications company, established in 2007, fully owned by Orkuveita Reykjavíkur (‘OR’), a public undertaking owned by the municipalities of Reykjavík, Akranes and Borgarbyggð. Read on EU Law Live
Equality Directive precludes national legislation authorising termination of employment contract following employee’s permanent incapacity, holds Court of Justice Thursday 18 January
On 18th January, the Court of Justice handed down its judgment in Ca Ca Negreta (C-631/22), a preliminary reference from the High Court of Justice of the Balearic Islands (Spain) concerning the interpretation of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Read on EU Law Live
www.eulawlive.com
46
The Week
ISSUE Nº10 15-19 JANUARY 2024
Court of Justice rules on entitlement to compensation for paid annual leave not taken for Italian civil servants in case of voluntary resignation Thursday 18 January
The Court of Justice delivered its judgment in Comune di Copertino (C-218/22), a case concerning the entitlement to financial compensation for paid annual leave not taken before the end of the employment relationship in the event of voluntary resignation by a civil servant. Read on EU Law Live
Notaries as undertakings under Article 101 TFEU: Court of Justice delivers judgment in Lietuvos notarų rūmai and Others Thursday 18 January
The Court of Justice delivered its judgment in Lietuvos notarų rūmai and Others (C-128/21) in a case brought by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) concerning antitrust law. Read on EU Law Live
Court of Justice rules on burden of proof in claims for infringement of exclusive rights to EU trade marks Thursday 18 January
The Court of Justice delivered its judgment in Hewlett Packard Development Company (C-367/21) concerning a dispute between Hewlett Packard Development Company LP (Hewlett Packard), based in the United States, and Senetic S.A., a
Polish company, regarding the commercialization of information technology equipment products bearing EU trademarks owned by Hewlett Packard. Read on EU Law Live
Eulex Kosovo v. SC: Court of Justice dismisses Eulex Kosovo’s appeal against order to pay compensation to former employee Thursday 18 January
On 18th January, the Court of Justice delivered its judgment in Eulex Kosovo v. SC (C-785/22 P), by which appellant, Eulex Kosovo, sought the annulment of the General Court’s judgment of 19 October 2022 (Eulex Kosovo, T-242/17 RENV), by which Eulex Kosovo was ordered to pay compensation for the material and non-material damage caused to SC. Read on EU Law Live
www.eulawlive.com
47
The Week
ISSUE Nº10 15-19 JANUARY 2024
Court of Justice rejects appeal in Jenkinson v. Council and Others Thursday 18 January
On 18th January, the Court of Justice handed down its judgment in Jenkinson v. Council and Others, a long-lasting dispute on the employment conditions of Mr. Jenkinson, an Irish citizen employed in several of the EU’s international missions. Read on EU Law Live
AG Medina: The Court of Justice should dismiss Commission’s appeal concerning its decision to impose a fine on Intel for alleged abuse of dominant position Thursday 18 January
Advocate General Medina delivered her Opinion in Commission v Intel Corporation (C-240/22 P), a case on appeal, by which
the Commission is seeking the setting aside of the General Court’s judgment in Case T-286/09 RENV regarding an alleged violation of Article 102 TFEU and 54 EEA Agreement. Read on EU Law Live
WWF Österreich: AG Ćapeta clarifies scope of Article 16 of Habitats Directive Thursday 18 January
Advocate General Ćapeta delivered her Opinion in WWF Österreich (C-601/22), a request for a preliminary ruling from the
Regional Administrative Court in Tyrol (Austria) concerning the interpretation of the Habitats Directive (Directive 92/43/ EEC).
Read on EU Law Live
Court of Justice: EU law precludes requirement to hold certificate of psychological fitness as additional documentation to the underlying driving licence Thursday 18 January
The Third Chamber of the Court of Justice handed down its judgment in Regionalna direktsia „Avtomobilna administratsia“
Pleven (C-227/22), a case concerning the interpretation of Directive 2006/126/EC on driving licences, in the context of
undergoing medical examinations to determine drivers’ psychological and mental fitness at intervals shorter than the period of validity of their driving licence. Read on EU Law Live
www.eulawlive.com
48
The Week
ISSUE Nº10 15-19 JANUARY 2024
Council and European Parliament reach agreement on proposal concerning CO2 emission standards for heavy-duty vehicles Thursday 18 January
The Council and the European Parliament reached a provisional political agreement on a proposal concerning CO2 emission
standards for heavy-duty vehicles (HDVs), to further reduce CO2 emissions in the road transport sector and to introduce new targets for 2030, 2035 and 2040. Read on EU Law Live
Commission requests information from 17 major online platforms and search engines regarding data access under Digital Services Act Thursday 18 January
The European Commission issued formal requests for information under the Digital Services Act to 17 Very Large Online Platforms and Search Engines, designated on April 25, 2023, including AliExpress, Amazon Store, AppStore, Bing, Booking.
com, Facebook, Google Search, Google Play, Google Maps, Google Shopping, Instagram, LinkedIn, Pinterest, Snapchat, TikTok, YouTube, and Zalando. Read on EU Law Live
Court of Justice: Contracting authority may be prohibited from concluding public procurement contract until body at first instance reviews the decision awarding the contract Thursday 18 January
The Fourth Chamber of the Court of Justice handed down its judgment in CROSS Zlín (C-303/22), a case concerning the
compatibility of Czech legislation with the provisions of Directive 89/665/EEC on the coordination of laws, regulations and administrative provisions relating to the application of review procedures relating to the award of public supply and public works contracts, interpreted in the light of Article 47 of the Charter of Fundamental Rights. Read on EU Law Live
State Aid approval decisions in the Official Journal Friday 19 January
Information was published regarding the European Commission’s decisions pursuant to Articles 107 and 108 TFEU not to raise objections against certain State aid measures. Read on EU Law Live
www.eulawlive.com
49
The Week
ISSUE Nº10 15-19 JANUARY 2024
ECtHR in Allée v. France concludes that there had been a violation of the freedom of expression Friday 19 January
The European Court of Human Rights (ECtHR), in a unanimous decision, ruled that the criminal conviction of a French
national for public defamation violated Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR).
Read on EU Law Live
ESAs release first set of rules under the Digital Operational Resilience Act: Strengthening ICT and third-party risk management in EU financial sector Friday 19 January
The European Banking Authority (EBA), the European Insurance and Occupational Pensions Authority (EIOPA), and the
European Securities and Markets Authority (ESMA), collectively known as the European Supervisory Authorities (ESAs), unveiled the initial set of final draft technical standards under the Digital Operational Resilience Act (DORA). Read on EU Law Live
ESA increases budget relating to Norway’s aid scheme for alternative fuels infrastructure Friday 19 January
The EFTA Surveillance Authority (ESA) approved a budget increase to a Norwegian scheme offering support to privatesector investments in own-use alternative fuels infrastructure. Read on EU Law Live
EDPS publishes survey on influence and impact of data protection officers in the institutions and bodies of the EU Friday 19 January
The European Data Protection Supervisor published the results of its survey on the role, responsibilities and tasks of data protection officers in the EU institutions, bodies, offices and agencies (‘EUIs’). Read on EU Law Live
ECtHR: Swedish authorities struck a fair balance between safeguarding the right to respect for private and family life and the State’s immigration policies Friday 19 January
On 18 January, the ECtHR delivered its judgment in Dabo v. Sweden, a case concerning the alleged violation of the right to respect for private and family life, in the context of a refugee’s family reunification request. Read on EU Law Live
www.eulawlive.com
50
The Week
ISSUE Nº10 15-19 JANUARY 2024
Commission invites stakeholders to submit views on Apple’s commitments over competition concerns relating to access to technology for contactless payments Friday 19 January
The European Commission invited comments on commitments offered by Apple to address competition concerns over access restrictions to the technology used for contactless payments with mobile devices in stores. Read on EU Law Live
www.eulawlive.com
51