The European Economic and Social Committee has issued an interesting report of company relocations. Some of the recommendations are a bit weird an vague though. Take this one :
Competition policy. Although increasing, the inter- action between industrial and competition policy is still insufficient. It needs to be stepped up. The appropriate implementation of the competition rules, interlinked with the objectives of industrial policy, will contribute significantly to growth and employment in the long term.
Directive 2005/56/EC of the European Parliament and of the Council of October 26th 2005 on cross-border mergers of limited liability companies has been published. The aim of the Directive is to facilitate cross-border mergers of limited liability companies governed by the laws of different member States. Thus, the laws of the Member States must allow the cross-border merger
of a national limited liability company with a limited liability company from another Member State if the national law of the relevant Member States permits
mergers between such types of company.
The Court of Justice has held in Case C-320/03 Commission v. Austria that banning heavy goods trucks on an important road constitutes an illegal restriction on the free movement of goods. Of course, it was not some suburban Acacia Avenue sort of road involved but the A 12 to Innsbruck which is a major artery for goods traffic between Germany and Italy.
The Tyrol region introduced a ban on trucks of more than 7.5 tonnes in order to improve air quality in the Inn Valley, through which the A 12 road passes.
The Court held that the ban was a restriction on the free movement of goods prohibited by Article 28 EC. It also held that it was not justified on the grounds on environmental protection as it was disproportionate.
The European Parliament has adopted and published new rules on public access to documents to implement Regulation 1049/2001 of the European Parliament and of the Council of May 30th 2001 regarding public access to European Parliament, Council and Commission documents.
These new rules are adopted pursuant to Rule 97(2), (3) and (4) of the Rules of
Procedure, which require the Bureau to adopt rules establishing a register of references of documents, to lay down arrangements for access to and to determine the authorities responsible for the handling of such documents.
The good thing is that these new rules incorporate the older rules adopted in 2001 on public access to documents so that there is only one set in force at any one time.
Advocate General Léger delivered his opinion in Cases C-317/04 and C-318/04. He concludes that the Court of Justice should annul the decisions of the Council and of the Commission on the transfer of passenger data to the US authorities.
That's quite an interesting twist in the plot. Even more interesting is the reason why he came to that conclusion. First, he considers that Commission Decision 2004/535/EC on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection was wrongly based on Directive 95/46/EC because the processing of the data put at the disposal of the United States concerned public security and the activities of the state in relation to criminal law and the fight against terrorism. Processing data for such purposes is outside the scope of the protection afforded by Directive 95/46/EC according to its Article 3 § 2. As the Commission could not lawfully adopt Decision 2004/535/EC on the basis of article 25 § 6 of Directive 95/46/EC, the Advocate General recommends that it should be annulled by the Court. So, the reasons the Advocate General puts forward are very different from those submitted by the European Parliament which brought the action.
Second, the Advocate General considered that Article 95 EC was not the proper basis for adopting Council Decision 2004/496/EC of May 17th, 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection and it too should be annulled by the Court. The reasoning was the same. The processing of the data pursuant to the agreement between the EC and the USA concerned the fight against terrorism and serious crime whereas Article 95 EC concerned the functioning of the internal market of the EC.
We'll have to wait for the Court's judgment of course.
What is a real shame is that the Opinion is not publicly available and all of the above is gleaned from the press release of the Court of Justice. Wow, does the Court consider that the release of the Advocate General's opinion constitutes the processing of personal data covered by Directive 95/46 ?
Its judgment of May 11th 2005 in Case K 18/04 the Tribunal rules on the constitutionality of the accession of Poland to the European Community. Three groups of deputies from the Sejm (lower chamber of the Polish Parliament) who opposed Polish accession brought an action in which they claimed that accession breached the Polish Constitution.
The Constitutional Tribunal held that Polish accession did not breach the Constitution and did not undermine the supremacy of the Constitution over the whole legal order in Poland. None of the provisions of the EC and Accession Treaties identified and criticized by the plaintiffs were found to be incompatible with the Polish Constitution.
But the Tribunal went on to examine the general issue of primacy or supremacy of EC law in Poland. The summary in English of the judgment states :
The norms of the Constitution, being the supreme act which is an expression of the Nation’s will, would not lose their binding force or change their content by the mere fact of an irreconcilable inconsistency between these norms and any Community provision. In such a situation, the autonomous decision as regards the appropriate manner of resolving that inconsistency, including the expediency of a revision of the Constitution, belongs to the Polish constitutional legislator.
The Tribunal held that the Constitution "enjoys precedence of binding force [and] application" in Poland.
The Tribunal further examined what would happen if there were ever a conflict (presumably at some later time) between a rule of EC - which seemed to comprise not only primary, Treaty-based rules but also secondary legislation - and a rule of the Polish Constitution. The Tribunal held, according to the English summary :
"Such a collision may in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm. Furthermore, it may not lead to the situation whereby a constitutional norm loses its binding force and is substituted by a Community norm, nor may it lead to an application of the constitutional norm restricted to areas beyond the scope of Community law regulation. In such an event the Nation as the sovereign, or a State authority organ authorised by the Constitution to represent the
Nation, would need to decide on: amending the Constitution; or causing modifications
within Community provisions; or, ultimately, on Poland’s withdrawal from the European
The Tribunal even went so far as to decide who should have jurisdiction to determine that there is a conflict between EC law and the Polish Constitution. It stated (according, once again to the English summary) :
"The Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) legislative organs acted within the delegated
competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions."
And the Constitutional Tribunal described the jurisdiction of the Court of Justice thus :
"The Court of Justice of the European Communities (ECJ) is the primary, but not the sole, depositary of powers as regards application of the Treaties within the legal system of the Communities and Union. The interpretation of Community law performed by the ECJ should fall within the scope of functions and competences delegated to the Communities by its Member States. It should also remain in correlation with the principle of subsidiarity. Furthermore, this interpretation should be based upon the assumption of mutual loyalty between the Community-Union institutions and the Member States. This assumption generates a duty for the ECJ to be sympathetically disposed towards the national legal systems and a duty for the Member States to show the highest standard of respect for Community norms."
Well, we'll just have to see how all this plays out in practice.
The European Data Protection Supervisor gave a speech recently entitled "The European Approach: regulation through protection authorities". He describes briefly the salient elements of the EC system of data protection : Broad rights conferred by legislation and processing of data subject to independent control. He makes the claim that "data protection" is distinguishable from the "right to privacy":
The European approach to data protection is thus intimately related to the protection of fundamental rights in an ‘Information Society’, and to the development of the right to ‘protection of personal data’ as a fundamental right, clearly distinguishable from the ‘right to privacy’.
Exactly what that means is not made clear. He just states that protection is afforded to personal data in its own right, whether or not personal privacy is in issue. Pity as the point is an interesting one. But if data is granted protection because it is personal, does it not form part of an individual's right of privacy ?