Google LLC v. Commission Nationale de l'Informatique et des Libertés (CNIL) and Eva Glawischnig-Piesczek v. Facebook Ireland Ltd. (C.J.E.U.)

2020 ◽  
Vol 59 (3) ◽  
pp. 428-458
Author(s):  
Kenneth Propp
Keyword(s):  
Personal Information ◽  
European Court Of Justice ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
The Social ◽  
Internet Platform ◽  
Data Protection Law ◽  
The Right ◽  
Austrian Law

During the fall of 2019, the European Court of Justice (hereinafter the ECJ or the Court) delivered judgments in two cases addressing the responsibility of internet platform companies for the personal information they control. In Google LLC v. Commission Nationale de l'Informatique et des Libertés (CNIL), the ECJ considered the geographic scope of its notable recent jurisprudence on the obligations of search engines to implement the “right to be forgotten” set forth in European Union (EU) data protection law. In Eva Glawischnig-Piesczek v. Facebook Ireland Limited, the Court examined whether Facebook was obliged under EU law to remove information available on the social network that previously had been found under Austrian law to defame an Austrian politician.

scholarly journals The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence

2020 ◽  
pp. 69-88
Author(s):  
Magdalena Jaś-Nowopolska ◽  
Daniel Mengeler
Keyword(s):  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Eu Law ◽  
Court Of Justice ◽  
Right To Be Forgotten ◽  
European Court ◽  
Federal Constitutional ◽  
The Right ◽  
Eu Fundamental Rights

The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

Centros Ltd—A Complete U-Turn in the Right of Establishment for Companies?

2000 ◽  
Vol 49 (3) ◽  
pp. 621-642 ◽  
Author(s):  
Anne Looijestijn-Clearie
Keyword(s):  
United Kingdom ◽  
Member State ◽  
European Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
European Court ◽  
Registered Office ◽  
Set Up ◽  
The Right ◽  
A Company

InCentros Ltd and Erhvers-og Selskabsstyrelesen (hereinafter Centros),1 the European Court of Justice ruled that it is contrary to Article 52 (now Article 432) and Article 58 (now Article 48) of the EC Treaty for the authorities of a member State (in casu Denmark) to refuse to register a branch of a company formed under the law of another member State (in casu the United Kingdom) in which it has its registered office, even if the company concerned has never conducted any business in the latter State and intends to carry out its entire business in the State in which the branch is to be set up. By avoiding the need to form a company there it would thus evade the application of the rules governing the provision for and the paying-up of a minimum share capital in force in that State. According to the Court, this does not, however, prevent the authorities of the member State in which the branch is to be set up from adopting appropriate measures for preventing or penalising fraud, either with regard to the company itself, if need be in co-operation with the member State in which it was formed, or with regard to its members, where it has been determined that they are in fact attempting, by means of the formation of a company, to evade their obligations towards creditors established in the territory of the member State of the branch.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

6. The preliminary ruling (Article 267 TFEU)

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the European Court of Justice (CoJ). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

The Effect of WTO Dispute Settlement Rulings in the EC Legal Order: Reviewing Van Parys v Belgische Interventie- en Restitutiebureau (C-377/02)

2005 ◽  
Vol 6 (6) ◽  
pp. 1025-1032
Author(s):  
Delphine De Mey
Keyword(s):  
Dispute Settlement ◽  
National Court ◽  
Legal Order ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
Wto Dispute Settlement ◽  
European Court ◽  
The Right ◽  
Community Legal Order

On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.

National Procedural Autonomy and General EU Law Limits

2019 ◽  
Vol 12 (2) ◽  
pp. 5-34
Author(s):  
Rob Widdershoven
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Eu Law ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court ◽  
Recent Approach ◽  
Procedural Autonomy ◽  
Judicial Protection ◽  
The Eu

This article examines the recent approach of the European Court of Justice of the EU towards the applicability of procedural national law in cases falling within the scope of Union law. It argues that the Court increasingly assesses such rules within the framework of the principle of effective judicial protection, as bindingly codified in Article 47 of the Charter of Fundamental Right of the EU since December 2009. This test is gradually replacing the rather deferential test on the Rewe principles of equivalence and effectiveness and implies a further limitation of procedural autonomy of the Member States. The reason for the shift seems to be the necessity to coordinate the Court's case law on Article 47 CFR with the case law of the European Court of Human Rights on Article 6 ECHR, because this coordination requires the application of a similar standard by both European Courts. As a result, the importance of, in particular, the Rewe principle of effectiveness, has already decreased to a considerable extent and might decrease further in future. Nevertheless, it is not to be expected that this standard will be abolished completely. First, because it may provide an adequate standard for assessing procedural issues that are not related to effective judicial protection or Article 47 CFR. Secondly, because incidentally it may be used by the Court for modifying national procedural law with a view to the effective application of substantive EU rules.

scholarly journals The turbulent life of the Working Time Directive

2018 ◽  
Vol 25 (1) ◽  
pp. 118-129 ◽  
Author(s):  
Tobias Nowak
Keyword(s):  
Decision Making ◽  
Working Time ◽  
European Court Of Justice ◽  
Decision Making Process ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
The Social ◽  
Social Partners ◽  
Working Time Directive

The case of the Working Time Directive (WTD) is a prime example of a failed attempt by the Member States and the Commission to counter rulings of the European Court of Justice (CJEU) by legislative overrule. Outsourcing the decision making process to the social partners also did not deliver the desired results. After years of trying to reform the WTD, the Commission changed its strategy and issued an interpretive communication instead. However, it is doubtful that this communication will solve all that is wrong with the WTD. What were the obstacles to legislative overrule in this case? What other strategies in avoiding the consequences of CJEU rulings do the Member States apply? What will the future of WTD look like?

scholarly journals The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law

2021 ◽  
Vol 4 (1) ◽  
pp. 53-68
Author(s):  
Orlando Scarcello
Keyword(s):  
European Court Of Justice ◽  
Constitutional Court ◽  
European Law ◽  
Eu Law ◽  
Court Of Justice ◽  
European Court ◽  
Judicial Supremacy ◽  
Judicial Protection ◽  
The Eu

This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future. 

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