EU newsletter May 2015


EU Newsletter – May 2015 After Google, Europe takes on Facebook Readers will likely remember the EU’s calamitous ruling on Google and the ‘right to be forgotten’, which forced the search giant to remove results upon request. Its effects are still an open question – in the weeks following the ruling, Google received an average of 1,000 requests a day across the EU, and the ominous warning that results may have been omitted still pops up on seemingly every search. The EU, however, is not content. Although the judgement was groundbreaking, and gave rise to a much higher level of discussion over the rights of web users, it failed to provide a working model going forwards – so it is hardly surprising the issue has cropped up again, albeit in a different form. European research had already asserted that Facebook’s privacy policy was in breach of EU law, but now, the same research has uncovered evidence that Facebook tracks users without their consent. Anyone who visits a webpage which uses Facebook’s social plugins, such as the ‘like’ button or an option to login, has a cookie placed on their computer that allows Facebook to track their browsing. This is an explicit breach of an Opinion published by Article 29, the pan-European data regulation working party, and is currently being investigated by Dutch data regulation authorities. Facebook say the research ‘contains inaccuracies’, but admit they track all users, even those not logged in, to allow them to target advertising. Watch this space for the next big EU data privacy case… EU accession to the ECHR: One step forward, several steps back The state of the EU’s accession to the European Charter on Human Rights has long been a source of confusion for students, academics and national politicians. Now, it seem it’s a source of confusion for the EU as well. The ECHR, like the EU itself, was set up in the wake of the Second World War to bring the nations of Europe closer. Unlike the EU, the ECHR’s purpose has remained unchanged – protection and promotion of the core human rights it includes. All of the EU’s members are also ECHR members, alongside other states including Russia, Norway and Azerbaijan. As well as appealing cases to the ECHR, these countries use ECHR principles in applying and interpreting their domestic law. As the EU has grown, it has come to fulfil many of the same functions as a nation state. It makes laws, decrees foreign policy, decides on spending in different areas, and grants basic rights to citizens within its borders. It makes sense, then, that the EU itself is seeking to become a member of the ECHR. Unfortunately, the process seems less straightforward than it has been for nation states. In Opinion 2/13, the ECJ has laid out its views on EU accession to the ECHR. The good news is that, following the Lisbon Treaty, there is now an ‘appropriate legal basis’ for accession, namely Article 2(6) TEU. But everything else in the Opinion is bad news. According to the ECJ, the supremacy of EU law over other international law makes accession extremely difficult. The court identifies three primary concerns. First, that the EU’s own human rights protections could clash with those of the ECHR. Second, that the mutual trust between states required under EU law could be undermined by the ECHR’s requirement for states to ‘check’ each other’s protection of fundamental rights. And third, that the highest national courts can request opinions directly from the ECHR, which might cause confusion with the EU’s own preliminary ruling procedure under Article 267. Opinion 2/13 goes on to list several other potential problems, such as the ECHR becoming involved in EU internal affairs if both the EU itself and member states were co-respondents to the ECHR, and a situation arising where the ECJ was constrained by its treaty obligations from giving its opinion on a matter, and so could not defend itself properly at the ECHR. Essentially, all these objections arise because of two issues. The first is the differences between the EU and a national state, and the second is the EU’s unwillingness to give up any of its own power. The ECHR might have to compromise due to the first issue – but if the EU’s membership is to provide an effective check on its protection of fundamental rights, it will certainly have to compromise on the second, even if this means amending its primary law. The “Tax Transparency Package” Tax avoidance has been a hot political topic across the EU this year, as austerity measures bite hard and corporate profits come under greater scrutiny. The cost to the public purse is estimated in the billions, and the Commissioner for Economic and Financial Affairs, Taxation and Customs, recently stated that “tolerance has reached rock-bottom for companies that avoid paying their fair share of taxes, and for the regimes that enable them to do this.”. So it’s no surprise the EU is looking to take action. The latest step is a package focused on ‘Tax Transparency’, which aims to facilitate the sharing of information on tax avoidance between member states. Until now, any sharing of information has been at the discretion of member states, and they have been reluctant to share with one another – whether through concern over the reputations of their national companies, unwillingness to admit the state’s own shortcomings in chasing them down, data privacy concerns, or sheer bureaucracy or laziness. This has meant member states have often been unaware of cross-border tax rulings, which has enabled companies to artificially reduce their tax contributions. Under the new package, member states will have to exchange information on their tax rulings automatically, by sending a short report of all the tax rulings they have issued to other member states every three months. Based on this, other member states can then ask for more detailed information on any particular ruling. The Tax Transparency Package should be in place by the end of this year, and represents a first major step in combating tax avoidance EU-wide. Following this, the EU is looking at compiling more statistics, issuing new codes of conduct, and reviewing rules on transparency for businesses. Even more innocent until proven guilty The EU’s Civil Liberties Committee has approved draft rules to “ensure that the principle of ‘innocent until proven guilty’ is fully respected in all member states”. The rules, which will now go forwards for negotiations with the EU Council, codify several aspects of the presumption of innocence. They restrict public authorities from making any public statements which presume guilt before a verdict is issued. Further, the rules state that silence cannot be used as evidence of guilt, that the burden of proof must always rest with the prosecution, and that cases decided without the accused present must be kept to a minimum. There is still a long way to go for these draft rules – after any amendments by the Council, they will again be open for discussion by the Commission, Council and Parliament. But if they do eventually become a Directive, it could have interesting consequences for the British system. The EU and “Zambrano children”: What is “genuine enjoyment of the substance of citizenship”? Case Comment, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), Case C-34/09 and Sanneh & others v Secretary of State for Work & Pensions, [2015] EWCA Civ 49 All EU citizens have the right to ‘genuine enjoyment of the substance of citizenship’. But as with all nice, vague-sounding phrases, cases at the margins often present problems. One such case is that of “Zambrano” families – those where the child is an EU citizen but the parents are not. In the case of Zambrano itself, the ECJ held that part of a child’s genuine enjoyment of its citizenship was that the parents should also be allowed to reside in the EU. However, the Home Office has denied social assistance to these parents, on the basis that although they are allowed to reside here, they don’t derive rights of their own, in the way any other citizen or lawfully resident person would. This position has been heavily criticised as part of the Coalition’s ongoing effort to make Britain hostile to immigrants – but last month, the Court of Appeal agreed with the Home Office. Stating that “‘Genuine enjoyment’ does not ‘require the State to guarantee any particular quality of life’”, and that Zambrano parents fall outside the scope of the EU’s protections for social benefits, non-discrimination, proportionality and fundamental rights, the Court of Appeal has invented a new class of person in EU law that is resident lawfully, but does not have the status of a lawfully resident person. London Taxis vs. The World: State Aid, bus lanes, and Uber Case Comment, Eventech, C-518/13 It’s a trying time to be a London taxi driver. Cabbies have hit the headlines recently over their battle with Uber, a private ride-sharing app that has used legally questionable tactics to undercut their prices and cut into their business. That row rumbles on in the UK courts – Transport for London says the app is legal, but has asked the High Court for clarification of the relevant law, whilst the London Taxi Drivers’ Association has started private prosecutions of some Uber drivers, delaying consideration of the TfL request. In the meantime, however, London taxis have scored a minor legal victory in a different area – the use of bus lanes. Currently, black cabs are allowed to travel in bus lanes, but private hire vehicles are prohibited from doing so. This was challenged in the ECJ as being a form of State Aid, in breach of Article 107(1) TFEU, which states that: “1. Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.” However, the ECJ found both that no state resources were expended, as the bus lanes were there anyway, and that black cabs were distinct enough from private hire vehicles that they could not reasonably be considered to be in the same factual situation. The Uber case is expected to reach the High Court this summer, but until then, black cabs can be content that they have, at least, kept some form of advantage over private hire vehicles.


About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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