Data Retention Laws and La Quadrature du Net II
La Quadrature du Net II has been criticized for allowing generalized metadata retention measures. However, it is important not to lose sight of the fact that the law must not become a mechanism for protecting criminals. The scale of online rights violations are a real problem. P2P networks are not only a threat to copyright protection, but also an environment for the distribution of content related to serious crime. It is therefore necessary to strike a balance between these two concerns and to propose solutions that adequately protect users without guaranteeing impunity for criminals.
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Testing the Waters of Private Data Pools
Nowadays, data is mostly collected not by state actors but by businesses. In 2010, the German Constitutional Court held that the legislator has to evaluate the overall level of surveillance in Germany before enacting new data retention obligations. In light of the recent rejuvenised discussions about data retention and a general surveillance account, this text explores whether such an account needs to consider private data pools and what is required for a successful evaluation.
Continue reading >>Compensation for Victims of Violent Crimes
On 7 November 2024, the CJEU provided clarifications for building a cohesive EU-wide framework for compensating crime victims. The ruling not only curtails Member States’ discretion in interpreting key concepts that are critical to defining eligibility for compensation, but it also strengthens the interplay between the Compensation Directive and the Victims’ Rights Directive. This judgment reinforces the the harmonized definition of victim established in Article 2 of the Victims’ Rights Directive, solidifying its status for determining those entitled to victim’s rights.
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Data Retention in a Cross-Border Perspective
This blog post compares the European and US approach to metadata surveillance and highlights some challenges that arise therefrom. It aims at shedding light on the main legal issues that may arise for the future of global counterterrorism. The essential role of courts in striking and keeping a balance between security and protection of human rights is further examined in light of the judgement in La Quadrature du Net II. Efforts should be made to avoid that the economic power of the US would lower the privacy standards when it comes to metadata surveillance.
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The Future of GDPR Enforcement
The ongoing trilogue negotiations on the GDPR procedural regulation aim to address significant enforcement shortcomings. From strengthening complainants' rights to harmonising Data Protection Authorities' discretion and improving cross-border cooperation, these discussions carry major implications for data protection in Europe. This analysis highlights the urgent need for reforms to ensure effective and fair enforcement.
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Of Minor Benefits and Major Costs
Is general and indiscriminate data retention permissible under the EU fundamental rights framework? In La Quadrature du Net II, the Court tilts the metaphorical scale towards data retention. The take-away could contribute to the enlargement of privatised surveillance that rests on a generalised pre-emptive data retention scheme. The ECJ’s findings could cement intrusive practices emerging from the counter-terrorism narrative to regular state practice at the expense of fundamental rights protection.
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Prioritising Member States Over Citizens
The classic story about the right to privacy and data protection in the EU is one of a high level of protection. Yet, this original rosy image is increasingly fading away, most visibly in the La Quadrature du Net litigation, which is a continuation of two dynamics. First, the Court is still cleaning up the residual mess that lingers on from the now annulled Data Retention Directive. Second, in so doing, it is incrementally allowing the Member States indiscriminately retain personal data. Hence, the Court is carving out space for Member States’ preferences to the detriment of the protection of the individual.
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European Society Strikes Back
“This is a frontal and deep attack against the … European society.” With this remarkable statement the Commission has started the “largest human rights battle in EU history”: the infringement proceedings against the Hungarian anti-LGBTIQ* law. The Commission claims that this law breaches the internal market, the Charter rights and the Union’s common values enshrined in Article 2 TEU. The “mega hearing”, which took place on 19 November 2024, is now facing its ultimate test: can the Member States’ compliance with Article 2 TEU be reviewed before the Court of Justice?
Continue reading >>The European Banking Union Also Means Cross-Border Bank Consolidation
A heated debate on the risks of EU’s unfinished-effort to establish a Banking Union erupted on 11 September 2024, when the Milan-based UniCredit announced that it had amassed an equity stake of 9% in the Frankfurt-based rival Commerzbank. The German Chancellor quickly labelled UniCredit’s move an “unfriendly attack,” adding that the acquisition of Commerzbank is a threat to German financial stability. We argue that German authorities can hardly provide a legally-compelling justification to convince the ECB to reject UniCredit’s request on financial stability grounds.
Continue reading >>Irritierend distanzlos
Das LG Erfurt hatte in einem knapp begründeten Urteil im August erstmals Eigenrechte der Natur anerkannt. Nachdem die gewagte (einzel)richterrechtliche Herleitung der Eigenrechte einiger Kritik begegnet war, legte das Gericht in seinem Urteil vom 17.10.2024 mit nunmehr ausführlicher Begründung nach. Andreas Gutmann wollte hier auf dem Verfassungsblog einige der kritischen Einwände gegen das zweite Urteil widerlegen. Doch seine Kritik an der Kritik geht meines Erachtens fehl.
Continue reading >>The Tail That Wags the Dog
In Opinion 2/13 the Court of Justice held that accession to the ECHR must not interfere with the operation of the principle of mutual trust as this would affect the autonomy of EU law. I offer a different reading: mutual trust is not a general principle capable of having autonomous legal effects. Furthermore, mutual trust is acquiring a novel value for the progressive operationalisation of the foundational values ex Article 2 TEU. Read in this way, it has then the potential to enhance fundamental rights protection and is certainly no bar to accession to the ECHR – it is the dog of core values that wags the tail of mutual trust and not vice versa.
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Two Courts, Two Visions
The diverging standards of protection concerning the right to a fair trial, as interpreted by the CJEU and the ECtHR, remain a critical obstacle to the EU’s renewed attempt at accession to the ECHR. In this field, the two Courts seem to be drifting further apart rather than converging, leading to unresolved conflicts between the standard of fundamental rights protection and mutual trust obligations in the EU. Except in the unlikely event of a course-correction by the CJEU, this means that we are no closer to accession today than we were ten years ago, when the now-infamous Opinion 2/13 was handed down.
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Enhancing Fundamental Rights Protection
The EU should ensure fundamental rights’ compatibility of EU legislation before its adoption. To that effect, we propose three distinct paths to improve the EU control mechanisms. Whilst mechanisms to ensure quality control do exist, primarily in the form of impact assessments, these mostly remain a merely formal exercise. Henceforth, we suggest strengthening the ex ante fundamental rights review of EU legislation through enhanced involvement of FRA in the legislative process.
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European Security and the Threat of ‘Cognitive Warfare’
Alleged threats from outside actors to the information ecosystems of the liberal-democratic societies in Western Europe have prompted policymakers to look for solutions that utilize artificial intelligence. However, such a techno-solutionist framing securitizes and externalizes an issue that is ultimately primarily societal and internal in nature.
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Of Artificial Intelligence and Fundamental Rights Charters
The Council of Europe has adopted the Framework Convention on Artificial Intelligence – the first of its kind. Notably, the Framework Convention includes provisions specifically tailored to enable the EU’s participation. At the same time, the EU has developed its own framework around AI. I argue that the EU should adopt the Framework Convention, making an essential first step toward integrating the protection of fundamental rights of the EU Charter. Ultimately, this should create a common constitutional language and bridge the EU and the Council of Europe to strengthen fundamental rights in Europe.
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Stuck Between Unity and Diversity
The role of the EU Charter in disputes concerning fundamental rights standards between the EU and Member States has been characterized by ambiguity ever since the Charter’s inception. As the EU deepens integration of Member States to effectively face the challenges ahead, I advocate for a pluralistic interpretation of Article 53 of the Charter that allows for a greater degree of accommodation of national particularities. In that way, one would reduce constitutional tensions and find that there may be unity in diversity after all.
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Interviewing EU Judges
Who are the women and men behind the CJEU’s decisions? The CJEU is an incredibly powerful institution, yet little is known about the backgrounds, judicial philosophies, and ambitions of its judges and advocates general. The Union’s “Help Desk,” as CJEU President Koen Lenaerts modestly describes the Court, is now interpreting broad-ranging rules while also giving legal meaning to ambitious and ambiguous values such as the rule of law. This is where the Borderlines archive comes in – we interview the judges and advocates general of the Court of Justice, to learn about their backgrounds, varied experiences, and their jurisprudential philosophies.
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The European Union and Climate Security
As the discourse linking climate change and security keeps on developing, the Union has positioned itself as a key player on the matter. Political and military realities however seriously hinder its action.
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EU Asylum Law in the Face of a Paradigm Shift
The contribution looks into what be be termed a paradigm shift in the field of asylum law, decisively away from a focus on the individual and towards harsh, indiscriminate measures, whenever ‘security’ so dictates.
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Reconciling National and European Constitutional Legalities
In light of the increasingly established autonomous European constitutional legality, national constitutional courts are now compelled to reconsider their roles. Through a progressive expansion of its direct applicability by national ordinary judges, the Charter of Fundamental Rights risks fostering the marginalization of national constitutional courts. I argue that the solution lies in a highly differentiated consolidation of constitutional legalities that integrates and embraces the unique roles of national constitutional courts in their respective systems of adjudication.
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Pouring New Wine into Old Wineskins
The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To address the challenges faced by national constitutional courts and the CJEU, it is essential to leverage existing procedural tools within domestic legal systems. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU.
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Hier spricht der Richter
Das LG Erfurt hat in zwei Entscheidungen zu den sogenannten „Dieselfällen“ der Natur Rechte zugesprochen. Dabei geht es nicht nur um die Frage, ob die Natur denn nun wirklich Rechte hat. Die Entscheidungen betreffen auch die professionelle Rolle von Richtern – einen Aspekt, den meist nur die randständige Professionssoziologie oder der juristischen Berufs-ethik behandelt. Die Entscheidungen weisen darauf hin, dass solche Fragen in Zukunft mehr Aufmerksamkeit verdienen.
Continue reading >>The right lessons from Trump 1.0
The US withdrawal from international institutions is a broader trend, not solely tied to Trump-era policies. Consequently, European governments that aim to preserve the rules-based international order should be prepared to take the lead and fill the gap left by the US exit. To pursue this strategy effectively, certain imperatives must be addressed.
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Fundamental Rights Come Off the Bench
In 2014, the European Court of Justice clearly prioritised the EU’s position on the unity and effectiveness of EU law over the protection of fundamental rights (Opinion 2/13). Ten years later, in October 2024, a judgment pitting football against the media seems to have turned the tables. In Real Madrid vs Le Monde, the Court held that excessive defamation damages may breach the freedom of the press and trigger the public policy exception. This is a significant shift, prioritising fundamental rights protection over the traditional objective of seamless judicial cooperation across the EU.
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Why the EU Charter Matters
This blog post argues that the most interesting aspect of the Charter of Fundamental Rights at the moment is its impact on remedies in national law. Almost 15 years since its entry into force, it is not unusual to meet domestic lawyers and judges who will voice doubts as to whether the Charter really matters in practice. Yet, through the right to an effective remedy under Article 47, the Charter opens up domestic law for new (or modified) remedies, thus placing national procedural autonomy under greater constraint than it was from the principles of effectiveness and equivalence.
Continue reading >>Whither, the EU Charter of Fundamental Rights
So, has the Charter come of age, now that it is nearing its quarter century, and has been binding in force for nearly 15 of those years. No longer is the Charter a “sleeping beauty”, and no longer are fundamental rights mere epiphenomena in EU law – offshoots framed in the amorphous category of “general principles of law” – creations of the EU’s earlier desire for legitimacy in its quest for greater integration. The EU Charter contains the essence of a common language, a currency that all can understand. And the EU is better with it than without it.
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The EU Charter’s Odyssey
Since its inception, the Union has grown into a tremendously powerful political actor through ever-increasing legal harmonization. This development has significantly marginalized the role of national apex courts – the lighthouses of democracy. Moreover, the globally observed trajectory of authoritarian forces is shaking EU's roots and questioning the vision of a lasting European polity. To fend off all these challenges, the Union should be centred around the hard-won humanistic freedoms and common values defined in the Charter, serving as a basis for common identification and a canvas to project shared visions of a political entity.
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A 486 Billion Dollar Investment
The Russian war of aggression against Ukraine has caused not only untold human suffering, but also immense damage to Ukraine’s physical, economic and social infrastructure. This contribution highlights the leading role of the European Union in coordinating international assistance for the reconstruction of Ukraine and its implications for the Union’s capacity to be a global player in peacebuilding and crisis management.
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On the Way to a European Defence Union
Is the EU on the path to a European Defence Union? Previously seen as militarily insignificant, the EU’s defence landscape is rapidly evolving in the wake of Russia’s invasion of Ukraine. This post explores how EU defence is changing in terms of aims, actors, and activities. It shows that the EU has left its comfort zone as a normative power to get ready for the geostrategic challenges of our time.
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The Missing Chapter
The European Commission’s Annual Rule of Law Report aims to prevent further rule of law backsliding within the EU by examining the rule of law situation in Member States. However, the report is missing an important chapter: the EU itself. On 28 October 2024, the Rule of Law Clinic (CEU Democracy Institute, Budapest), together with experts from across Europe, began bridging this gap by publishing the first report on EU adherence to rule of law standards. Without a meaningful self-assessment of its own compliance with rule of law principles, the EU weakens its credibility, particularly when addressing systemic non-compliance with EU law by Member States.
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A New European Map of Core International Crimes Accountability Spaces
For the core international crimes committed in Ukraine in the wake of the Russian war of aggression, criminal accountability remains a priority shared by, among others, Ukraine, the EU, EU member states, and the ICC. The contribution delves into the remaining uncertainty where accountability will be ensured.
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The Council of Europe as a Preferable and Viable Partner to Ukraine for Prosecuting the Crime of Aggression
Recently, plans to establish a tribunal for the crime of Aggression against Ukraine under the auspices of the Council of Europe have gained momentum. As this blogpost argues, this is a viable and also preferable option to hold the Russian leadership to account.
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Law and Governance Variations of Europe’s Geopolitical Awakening
The first contribution of the online symposium Europe’s geopolitical coming of age - adapting law and governance to harsh international realities explores the profound changes in European security and defence law following Russia’s invasion of Ukraine. The new geopolitical realities of dealing with warfare in Europe set the scene for the symposium.
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Fruchtbare Irritationen
Im August 2024 hat das LG Erfurt als erstes deutsches Gericht Rechte der Natur anerkannt. Diese können demnach in den Dieselfällen eine „schutzverstärkende“ Wirkung zugunsten der geschädigten Fahrer*innen entfalten. Das Urteil hat – auch über Deutschland hinaus – für Aufsehen und Kritik gesorgt. Am 17. Oktober hat das Gericht nun ein zweites ähnliches Urteil verkündet, das die Gelegenheit bietet, nochmals einen Blick auf die Besonderheiten der Erfurter Konstellation zu werfen. Diese Besonderheiten irritieren nicht nur die deutsche Rechtswissenschaft, sondern auch die Diskussionen über Rechte der Natur in produktiver Weise.
Continue reading >>Football at a Crossroads
The CJEU shook the world of football with its Diarra ruling on Friday, October 4. The impact of the ruling is all but a surprise for me. In a way, the FIFA transfer system was always on shaky legal grounds in terms of EU internal market law. Now, the chickens have come home to roost and key parts of the football transfer system have been brutally set aside. I aim to explain why the Diarra ruling marks a crucial turning point for football, its economy and even its identity.
Continue reading >>Unleashing Horizontal State Liability
The Common European Asylum System (CEAS) is under attack. In a recent Judgment against Hungary, the European Court of Justice has unambiguously stated that non-compliance with the rules of the CEAS undermines solidarity between Member States and strikes at the very heart of EU law. Traditional means of enforcement, however, seem insufficient to foster compliance with these rules. Against this backdrop, this blogpost argues for the unexplored avenue for enforcing the CEAS via horizontal state liability.
Continue reading >>Fundamental Rights Score a Goal
Amid the significant number of rulings delivered by the ECJ on 4 October 2024, the long-awaited judgment pitting football against the media stands out. In Real Madrid vs Le Monde, the Court held that excessive defamation damages may breach the freedom of the press and trigger the public policy exception under Brussels Ia Regulation concerning recognition and enforcement of foreign judgments. In doing so, the ECJ allowed national courts to conduct a substantive review of foreign judgments despite the principle of mutual trust, to ensure the enforcement of fundamental rights across the EU.
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Taking Locus Standi of International Actors Seriously
On October 4th 2024 the Court of Justice issued its judgement in Front Polisario II upholding the judgement in which GC annulled Council’s decision on the conclusion of the trade agreement between European Union and Morocco. In its landmark judgement the Court acknowledged the legal standing of Front Polisario – the liberation movement representing rights of the people of Western Sahara. The Court’s findings advance the flexible and adequate approach on access to EU’s courts – and for that are worth applauding.
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Bridging the CFSP Gap
The CJEU interprets its Common Foreign and Security Policy jurisdiction in light of the objectives set by the Lisbon Treaty, thereby integrating part and parcel of the CFSP into the rest of the European Union acquis. This aligns the CFSP with the general principles and constitutional rules set in the Treaty. As the Court advances the integration of CFSP jurisdiction within the broader EU legal order, the judgements of 10 September 2024 in Neves 77 Solutions and KS and KD v Council and Others serve as landmark ruling for the future of judicial review in CFSP.
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Dismissing the Genuine Link by Disregarding Constitutional Principles
The struggle over the Maltese investment citizenship scheme is probably one of the fiercest debates of EU constitutional law. The conflict revolves around the question of whether EU law contains requirements for the acquisition of Union citizenship and whether these requirements consist in a “genuine link” between the respective state and individual. The recent Opinion by AG Collins provides us with an extremely narrow and astonishingly one-sided view. In particular, he seeks to make us believe that there are no sound ways to anchor a genuine link requirement in EU law. Martijn van den Brink finds it “hard to disagree with the Advocate General”. Respectfully, I disagree.
Continue reading >>Towards Shared European Finances
The EU is once again eyeing a workaround to address an emerging challenge. A few days ago, former ECB President Mario Draghi issued a landmark report to stem the EU’s decline, calling for a massive investment of 800 billion euro annually. Draghi’s proposal is in line with an emerging post-pandemic pattern in EU policymaking. This pattern is characterized by flexible, ad-hoc measures that are implemented outside of the bloc’s treaty framework. We celebrate the boldness and effective design of this important template, even as we recognize some legal creativity necessary to carry out bold moves.
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A Political Question Doctrine for the CFSP
On 10 September 2024, the CJEU issued its judgment in the joined cases of KS and KD, addressing the scope of its jurisdiction within the Common Foreign and Security Policy. Specifically, the Court asserted its jurisdiction in so far as the harm-causing conduct did not relate to “political or strategic” choices made in the context of the CFSP. I criticize the Court’s reliance on such an ill-defined concept to delineate the boundaries of its jurisdiction and argue that removing the limitations on the CJEU’s jurisdiction within the CFSP would require a reform of the Treaties.
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The Patriots for Europe
Never in the history of the EU has a political party at Union level so ostentatiously misnamed itself as the Patriots for Europe. Their name suggests a passionate love for homeland Europe but their Manifesto reveals an unmistakable commitment to dismantle European democracy and to reduce the EU to an undemocratic organisation of illiberal states. Following the recent European Parliament elections, the Patriots for Europe has emerged as nothing less than the third largest political party. I explore the core elements of their illiberal political agenda as outlined in their Manifesto and discuss how their proposed sovereign policies, if implemented, could reverse the progressive trajectory of European (legal) integration.
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Soft Law’s Increasing Clout
The non-binding nature of soft law is rather self-evident, yet, its influence is growing, as reflected in the recent Jemerak case, decided on 5 September 2024. While the judges in Luxembourg explicitly stated that the Commission’s guidance document had no effect on their interpretation of Union law whatsoever, their decision de facto indirectly reviewed that document. I argue that the Jemerak case exemplifies the growing significance of soft law.
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First Time as Tragedy, Second Time as Farce
In December 2023 the Hungarian Parliament speedily adopted the Act on the Protection of National Sovereignty and by February 2024 the government had already designated the Sovereignty Protection Office (SPO) for its enforcement. The history repeats itself, first time as tragedy, second time as farce. The current activities of the SPO exemplify the Hungarian government’s ongoing efforts to undermine free and independent society. It is crucial for the Union and European civil society to once again act swiftly to prevent the harassment of journalists and the potential disappearance of NGOs.
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Misjudging the Football Transfer System
In 1995, the Bosman ruling put an end to transfer fees for out-of-contract players. This year, the Court of Justice of the EU (CJEU) is dealing with the Diarra case, which concerns players still under contract. The Advocate General has already given the Opinion, which suggests that the upcoming CJEU's ruling will further weaken the transfer system. I argue that both rulings focus too much on the labour market and the freedom of movement of workers and neglect the fact that the football transfer system enhances competition in consumer markets at the benefit of smaller clubs and the football fans.
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The Hungarian Treeless Treetop Walkway
In the small village of Nyírmártonfalva in northeastern Hungary, there stands a wooden treetop walkway designed for walking among the tree canopies. Yet, there are no trees around. The European Public Prosecutor’s Office initiated proceedings to investigate this allegedly fraudulent appropriation of the EU common budget. In early August 2024, the Hungarian Office of the Prosecutor General rejected EPPO's jurisdiction. Nonetheless, the EPPO has jurisdiction according to the result theory, accepted also in Hungary, due to the place where the result of an offence occurs.
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Strengthening the EU Legal Edifice for Data Transfers
GDPR provides the rulebook for international transfers of personal data from the EU and serves as the vehicle through which EU data protection law interacts with the wider world. However, the EU seems ambivalent about deciding how far it can expect third countries to adopt data protection standards similar to its own. Moreover, DPAs often fail to scrutinize data transfers to third countries that may lack the rule of law. Finally, the EU lacks a comparative methodology for assessing data protection equivalence in third countries. It is essential for the EU to elevate the public discourse so that the global significance of data transfers is recognized.
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Mainstreaming Gender in EU Arms Export Controls
With the third review of the EU Common Position on Exports of Military Technology and Equipment (EU Common Position) well underway, there is a critical opportunity to align this document with international instruments that incorporate gender considerations in the arms trade. In light of this, the post examines the increasing integration of Gender-Based Violence (GBV) within arms trade legal frameworks and calls for the EU Common Position to explicitly reference gender beyond its already present human rights considerations.
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Hungary’s Sovereignty Protection Sham
Hungary’s persistent rule of law and corruption shortcomings have led the EU to freeze EUR 27.8 billion in funding under various conditionality regimes. Prime Minister Orbán, who relies on these funds to maintain his political machinery and reward loyalists, has wielded Hungary’s veto in the Council to unlock this funding. Moreover, Hungary adopted the Act LXXXVIII of 2023 on the protection of national sovereignty (Sovereignty Law), which sets up the Sovereignty Protection Office (SPO), a state entity created to defend Hungarian sovereignty. This post examines the Sovereignty Law and calls the EU to effectively halt the SPO’s activities and prevent this model from spreading elsewhere.
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