EU Law Blog

Article on the Data Retention Directive

Professor Francesca Bignami has published a thoughtful and informative article entitled "Protecting Privacy against the Police in the European Union: The Data Retention Directive".

You can download here.

The abstract reads :

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the paper finds that privacy—as guaranteed under Article 8 of the European Convention on Human Rights and the Council of Europe’s Convention on Data Protection—was adequately protected in the Directive. This positive experience can serve as guidance for guaranteeing other fundamental rights in the rapidly expanding area of EU cooperation on criminal matters.

Highly recommeded!

For a previous post on the Data Retention Directive, see here.

The war on the war on terror and the right to effective judicial protection: Case T-228/02

The Court of First Instance has handed down a fairly long but certainly complex judgment on how the Council can order restrictive measures against certain persons to combat terrorism. In the end, the judgment in Case T-228/02 Organisation des Modjahedines du peuple d'Iran v. Council deals quite a blow to the efforts made to hamper the activities of organizations suspected of being involved in terrorism.

The Organisation des Modjahedines du peuple d’Iran (OMPI) was originally set up to depose the Shah of Iran. It then changed tack to oppose the mullahs’ regime. It had an armed and violent branch. It claims to have renounced violence and terror (euphemistically called "military action" by the Court of First Instance) since June 2001. Nevertheless, the Council included the OMPI in a list of organizations whose funds should be frozen in order to protect against terrorism. The OMPI then sought annulment of its inclusion in that list.

The OMPI was included in the list in the following circumstances. The UN Security Council adopted Resolution 1373 in 2001 calling on all UN members to combat terrorism and the financing of terrorism by all means, in particular by freezing the funds of persons who commit, or attempt to commit, terrorist acts. That resolution did not identify the persons and entities in question but left it to the member States to identify them. To implement the Resolution 1373 (2001), the EC adopted Common Position 2001/931/CFSP and Council Regulation 2580/2001 ordering the freezing of the assets of the terrorist organizations included in a list. That list is to be updated regularly. An organization is included in the list on the basis of precise information in the file which indicates that a decision has been taken by a competent national authority, usually a judicial authority. The names of persons and entities on the list are to be reviewed at regular intervals and at least once every six months to ensure that there are still grounds for keeping them on the list. In 2002 the Council updated the list and included the OMPI. The list has been reviewed several times and the OMPI has remained on the list.

In its judgment sympathetic to OMPI, the Court of First Instance annulled the inclusion of OMPI on the list of terror organizations because, in short, the Council failed to accord that organization due process.

Interestingly, the Court of First Instance distinguishes this case from those cases involving organizations linked to terrorists such as Osama bin Laden, Al-Qaeda and the Taleban (Case T-306/01 Yusuf and Case T-315/01 Kadi and by implication Case T-253/02 Ayadi and Case T-49/04 Hassan. For our posts on those cases see here and here). In those cases, the Council and the Commission had merely transposed at EC level the resolutions of the Security Council and decisions of its Sanctions Committee which identified the persons concerned by name, without the EC institutions having any discretion as to the appropriateness or well-foundedness of those measures. By contrast, in the system at issue in the present case, the Security Council left it to the discretion of the UN Members to identify the organizations whose funds are to be frozen. That identification, according to the Court of First Instance, involves the exercise of the EC's own powers, entailing the exercise of discretion. Consequently, the Court held that the Council is in principle bound to observe the fundamental rights guaranteed by the EC legal order.

The judgment contains long and detailed explanations of the right to a fair hearing and the right to effective judicial protection. There is much citation of the case law of the European Court of Human Rights.

The Court of First Instance held that the right to a fair hearing does not require that the persons concerned be heard by the Council when an initial decision to freeze their funds is adopted, as it must be able, the Court concedes, to benefit from a surprise effect. But the Court of First Instance finds that the organizations concerned must be informed of the specific information in the file which indicates that a decision has been taken in respect of them by a competent authority of a member State, in so far as reasonably possible, either concomitantly with or as soon as possible after the adoption of such a decision. And the organization involved must be given the opportunity to make known its views on any subsequent decision to maintain a freeze on funds.

The Court of First Instance found that the OMPI was not given the opportunity to make its views known and was not told of the information on which the decision to include in the list was based.

Tobacco advertising ban, harmonization and the internal market: Case C-380/03

The Court of Justice handed down an interesting and important judgment on using Article 95 EC as the legal basis for prohibiting tobacco advertising. In its judgment in Case C-380/03 Germany v. European Parliament and Council, the Court upheld the legality of two key provisions of Directive 2003/33/EC.

The judgment is both a classic one and a bit of surprise. Here's why.

Germany had been successful back in 2000 in its attempt to have annulled Directive 98/43/EC on the advertising and sponsorship of tobacco products. The Court annulled Directive 98/43/EC by its judgment in Case C-376/98 Germany v. Parliament and Council. That was quite a complicated judgment but to simplify it outrageously, the Court had held that Article 95 EC (Article 100a EC as it was numbered at the time) could not be used as a legal basis for the outright ban of certain forms of tobacco advertising.

Then the European Parliament and Council adopted Directive 2003/33/EC to replace Directive 98/43/EC that had been annulled.

So Germany had a go at annulling the new Directive in Case C-380/03. And this time it failed.

In Case C-380/03 Germany sought the annulment of two articles prohibiting:
(i) the advertising of tobacco products in the press and other printed publications, in information society services and in radio broadcasts and
(ii) the sponsorship of radio programmes by tobacco companies. Only publications intended for professionals in the tobacco trade and publications from non-member countries which are not principally intended for the Community market are exempted.

Germany claimed that those prohibitions could not be adopted on the basis of Article 95 EC. That provision allows the EC to adopt measures for the approximation of national provisions which have as their object the establishment and functioning of the internal market. But Germany claimed that neither of the two prohibitions in the new Directive contributes to eliminating obstacles to the free movement of goods or to removing appreciable distortions of competition and consequently the conditions justifying recourse to Article 95 EC were not met.

This time round, the Court of Justice dismissed the action by Germany and held that Directive 2003/33/EC was validly based on Article 95 EC.

The Court found that at the time of the Directive’s adoption, disparities existed between national rules on advertising and sponsorship in respect of tobacco products which justified action by the Community legislature. Those disparities were such as to impede the free movement of goods and the freedom to provide services. They also meant that there was an appreciable risk of distortions of competition(see Joined cases C-154/04 and C-155/04 Alliance for Natural Health and others at paragraph 30). The Court also held that held that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made (see Joined cases C-154/04 and C-155/04 Alliance for Natural Health and others at paragraph 31).

Interestingly, the Court held that the different national measures prohibiting or restricting the advertising of tobacco products are liable to impede access to the market by products from other Member States more than they impede access by domestic products. It also held that such measures restrict the ability of undertakings established in the member States where they are in force to offer advertising space in their publications to advertisers established in other member States, thereby affecting the cross-border supply of services (see, to this effect, Case C-405/98 Gourmet International Products, paragraphs 38 and 39).

In contrast to its judgment in Case C-376/98, the Court held in this case that because of the disparities in national laws likely to affect trade between member States, the EC could "approximate" national law on the basis of Article 95 EC by definitively prohibiting the marketing of the product in question.

The Court took the precaution of stating:

"Recourse to Article 95 EC as a legal basis does not presuppose the existence of an actual link with free movement between the Member States in every situation covered by the measure founded on that basis. As the Court has previously pointed out, to justify recourse to Article 95 EC as the legal basis what matters is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market (see, to this effect, Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others, paragraphs 41 and 42, and Case C-101/01 Lindqvist, paragraphs 40 and 41).

For other cases on the use of Article 95 EC see our previous posts here and here.

New antitrust leniency notice

The Commission has recently published a new "Notice on Immunity from fines and reduction of fines in cartel cases" aka "the Leniency Notice".

This new Notice, which replaces the 2002 Notice, enters into force immediately and applies to leniency applications received after December 8th, 2006.

The revised Leniency Notice clarifies the information an applicant needs to provide to the Commission to benefit from immunity from fines. It introduces a "marker system" for immunity applicants according to which an application can be accepted on the basis of only limited information and the applicant is then given time to perfect the information and evidence to qualify for immunity. The Notice also clarifies the conditions for immunity and reduction of fines and introduces a procedure to protect corporate statements made by companies under the Leniency Notice from being made available to claimants in civil damage proceedings. So much for encouraging private enforcement.

A brief press release describes the salient changes and a more detailed memos (MEMO/06/469) and (MEMO/06/470)sets out some "frequently asked questions".

The ABA Sections on Antitrust Law and International Law made some interesting comments, available here, shortly before the new Notice was published.

Lawyers' fees, price competition and freedom to provide services: Joined Cases C-94/04 and C-202/04

The Court of Justice has handed down a judgment in two cases - Joined Cases C-94/04 and C-202/04 Cipolla and Macrino - on lawyers' fees.

In Italy, there is a scale of lawyers’ fees that is – under an old 1933 provision from Mussolini's time – set on the basis of criteria laid down by decision of the National Lawyers’ Council (Consiglio Nazionale Forense) and approved by the Minister of Justice after he has obtained the opinion of the Interministerial Committee on Prices (Comitato Interministeriale dei Prezzi) and the Council of State (Consiglio di Stato). Those criteria are to be determined on the basis of the monetary value of disputes, the level of the court seised and the duration of the proceedings. For each procedural step, or series of steps, the scale sets maximum and minimum fees. Any agreement derogating from the minimum fees set by the scale for lawyers’ services is void. It is only at the time of settlement of the fees that the court may, by reasoned decision, exceed the maximum limit (in cases of exceptional importance) or fix fees below the minimum limit (where the case proves easy to deal with).

In the first case, Mr Cipolla, a lawyer drew up three summonses for his clients. The dispute was finally resolved by means of a settlement without Mr Cipolla’s involvement. Having already made an advance payment of LIT 1 850 000, the client refused to pay the sum of LIT 4 125 000 demanded by her lawyer. Since the Tribunale di Torino rejected Mr Cipolla’s action for the payment of that sum, he brought the matter before the Corte d’Appello di Torino seeking application of the scale of fees. In the second case, Mr Macrino and other clients contested the order obtained against them by Mr Meloni concerning the fees he had demanded from them for an out-of- court consultation on copyright, claiming the fees were disproportionate having regard to the importance of the case dealt with and the services performed. The Tribunale di Roma asked the Court of Justice whether the scale, in so far as it is applicable and is binding for lawyers in out-of-court matters, is compatible with the EC Treaty.

The Court held that the antitrust rules in the Treaty did not apply because the minimum fee system in Italy was not the result of an agreement between undertakings. The Court held that it is the Italian State and not the Bar Association which exercises the power to take decisions on lawyers’ minimum fees. Consequently, the Italian State did not require or encourage the adoption of agreements, decisions or concerted practices contrary to the rules of free competition or of reinforcing their effects, or requiring or encouraging abuses of a dominant position or reinforcing the effects of such abuses.

As for the provisions of the Treaty of the freedom to provide services, the Court held that the minimum fee arrangement was caught by Article 49 EC because it renders access to the Italian legal services market more difficult for lawyers established outside Italy, depriving them of the possibility, by requesting fees lower than those set by the scale, of competing more effectively with lawyers established on a stable basis in Italy and restricting the choice of recipients of such services.

Nevertheless, the Court held that the system could be justified. It held that objectives of protection of consumers (recipients of legal services) and the proper administration of justice are overriding requirements of public interest capable of justifying a restriction on freedom to provide services. But that is subject to the twofold condition that the national measure is suitable for securing the attainment of the objective pursued and that it does not go beyond what is necessary in order to attain that objective. The Court of Justice leaves it to the referring Italian courts to check whether those conditions are fulfilled in the present cases.

The Court, when examining the justification of the system, even makes the startling finding that price competition may be harmful to consumers! (see paragraph 67 of the judgment)

What is certain is that the Commission's Report on Competition in Professional Services (COM(2004)83 final) is now unsound as a proper statement of the law relating to professional services.

Partial renewal of the Court of First Instance August 2007

And here's an interesting document on the partial renewal of the Court of First Instance on August 31st 2007.

It lists the twelve judges whose term expires then and asks the governments of member States for nominations by March 16th, 2007.

Progress on appointments of Bulgarian and Romanian judges

The procedure for appointing the Bulgarian and Romanian judges to the Court of Justice and to the Court of First Instance is well underway. Here's the latest document from the Council.

The nominees for Bulgaria are:

Mr Alexander Arabadjiev for the Court of Justice and Mr Theodore Chipev for the Court of First Instance.

The nominees for Romania are:

Ms Camelia Toader for the Court of Justice and Mr Valeriu Ciuca for the Court of First Instance.

Lots were drawn in accordance with Article 46(2) of the Act of Accession which provides:

"The term of office of one of the Judges of the Court of Justice appointed in accordance with paragraph 1 shall expire on 6 October 2009. This Judge shall be chosen by lot. The term of office of the other Judge shall expire on 6 October 2012.
The term of office of one of the Judges of the Court of First Instance appointed in accordance with paragraph 1 shall expire on 31 August 2007. This Judge shall be chosen by lot. The term of office of the other Judge shall expire on 31 August 2010."

The results were as follows :

As regards the Court of Justice, the term of office from January Ist, 2007 to October 6th 2009 will be awarded to the Romanian judge and the term of office from January 1st 2007 to October 6th 2012 will be awarded to the judge from the Republic of Bulgaria.

As regards the Court of First Instance, the term of office from January 1st 2007 to August 2007 31st will be awarded to the judge from the Republic of Bulgaria and the term of office from January 1st 2007 to August 31st 2010 will be awarded to the Romanian judge.

The future of labor law in Europe: The Commission's public consultation

The Commission has launched a debate on the future of labor law in Europe and how it can be modified to help promote economic growth. It has published a "Green Paper" entitled "Modernizing labour law to meet the challenges of the 21st century" (COM(2006) 708 final). You can download the whole thing here.

You've just go to wonder on which planet the Commission lives. It rambles on with neologisms like "flexicurity". Better to click here or read this economics blog regularly.

But enough of that. The interesting thing is that the Commission is venturing far beyond the free movement of workers in its Green Paper.

Maltese language and translations of legislation: Regulation 1738/2006

A while back we posted something about the Irish language. You can see that post here.

Now it is the turn of the Maltese language. According to Regulation 1/1958 Maltese is an official language. Then the Council adopted Regulation 930/2004 setting up a transitional period of three years from May 1st 2004 during which the institutions would not be obliged to draft all acts in Maltese. But it was also agreed that the Council would review the operation of that Regulation and decide whether it should be extended for a further year.

The Council has now undertaken that review and adopted Regulation 1738/2006 which decides not to extend the period for a further year. That means all new acts of the institutions must be adopted and published in Maltese from April 30th 2007.

As for acts that have not already been translated and published in Maltese, they should be published in that language by December 31st 2008, according to Article 3 of Regulation 1738/2006.

Has anyone ever costed all this ? It would come as no surprise that the cost of translating into Maltese - a cost borne by all member States - exceeds the GDP of Malta!

Microsoft sorts it out

Further to our recent post on compliance by Microsoft with the decision obliging it to supply the relevant complete and accurate interface documentation within four months, the Commission confirms that Microsoft has now complied.

The Commission's press release reveals that Microsoft has submitted a revised version of the Technical Documentation with a view to meeting the requirements of the Commission’s March 2004 Decision (see IP/04/382 and MEMO/04/70). That Decision ordered Microsoft, among other things, to disclose and license complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers.

According to the press statement, potential licensees can review the Technical Documentation that Microsoft has made available in order to evaluate whether it contains the necessary information to allow the development of interoperable work group server operating system products. In parallel, the Monitoring Trustee will test the documentation in order to verify its accuracy. The Commission will decide in due course whether or not Microsoft is in compliance with the obligation to provide complete and accurate Technical Documentation taking into account comments from the potential licensees and advice from the Trustee.