June case law digest

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Decided cases

Rights of Residence

C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrari and Others

Judgment Date 5 June 2018

Mr Relu Adrian Coman, a Romanian, and Mr Robert Clabourn Hamilton, an American, got married in Brussels and 2 years later contacted the Romanian authorities to enquire as to the process by which Mr Hamilton could reside in Romania for more than 3 months. This request was based on the directive on the exercise of freedom of movement, which allows a non-EU citizen to join their spouse in the Member State in which they reside. The Romanians said that Mr Hamilton was not a ‘spouse’ under Romanian law and so could only reside there for 3 months. They appealed, and the Romanian courts asked the Court for clarification on whether Mr Hamilton must be regarded as a ‘spouse’.

The Court said that the directive on the exercise of freedom of movement only governs EU citizens moving to other Member States and not non-EU nationals. However, in certain cases, non-EU citizens who are eligible family members could be accorded a derived right of residence under Article 21(1) of the TFEU. The conditions under which residence can be granted under this Article must not be stricter than those under the rights of freedom of movement.

The Court stated that in the directive on the exercise of free movement, ‘spouse’ is gender-neutral so same sex marriage would apply, however they were also mindful that the EU respects the national identity of Member States in relation to marriage. The Court nonetheless considered that refusing to recognise this marriage solely for the purpose of granting a derived right of residence may affect the EU citizen’s freedom of movement and any restrictions on this should only be based on objective public-interest considerations.

The Court held that the obligation for a Member State to recognise a same sex marriage for the purpose of granting a derived right of residence to a non-EU national does not require it recognise same sex marriages within law. Therefore, although Member States have the freedom whether or not to authorise same sex marriage, they may not obstruct the freedom of residence of an EU citizen by refusing to grant residence to their non-EU same sex spouse.

Data Protection

C-210/16 Unabhangiges Landeszentrum fur Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH

Judgment Date 5 June 2018

Wirtschaftsakademie offers educational services inter alia by means of a fan page hosted on Facebook. Administrators of these pages can obtain anonymous statistical data, gathered through cookies, on their visitors free of charge. The German courts, on 3 November 2011, held the fan page should be deactivated as visitors were not informed of this. Wirtschaftsakademie appealed, saying the processing of personal data by Facebook could not be attributed to it and that it hadn’t commissioned Facebook to gather the data. The German courts therefore asked the Court of Justice to interpret Directive 95/46 on data protection.

The Court held that Facebook is indeed the controller responsible for processing personal data. However, administrators such as Wirtschaftsakademie must be regarded as controllers jointly responsible as they take part, by definition, in the determination of the purposes and means of processing the personal data of visitors to their page. Administrators can ask for specific data – thereby requesting its processing – which can be used to enable them to best target their audience. The mere fact that they use the platform of Facebook cannot exempt them from compliance with their personal data obligations.

The Court held that Unabhangiges Landeszentrum, a supervisory authority in Germany within Directive 95/46 had the competence not only to exercise the rights under Directive 95/46 in relation to Wirtschaftsakademie but also to Facebook Ireland. They stated that where an undertaking established outside the EU has several establishments in Member States, Member State supervisory authorities can exercise their powers under Directive 95/46 even if the establishment concerned deals in no way with data and this belongs exclusively with another establishment (in this case Facebook Ireland). The Court also said that, where this is the case, the supervisory authority is competent to assess, independently of the other Member State’s supervisory authority (in this case Ireland), the lawfulness of such data processing and may exercise its powers of intervention without first calling on that Member State’s supervisory authority to intervene.

Commercial

C-15/16 Bundesanstalt fur Finanzdienstleistungsaufsicht v Ewald Baumeister

Judgment Date 19 June 2018

Mr Ewald Baumeister is an investor who suffered loss due to the Ponzi Scheme Phoenix Kapitaldienst, which is now in judicial liquidation. Mr Baumeister submitted a request to the German Supervisory Authority for access to certain documents including special audit reports, internal documents and correspondence relating to that authority’s supervision of Phoenix. He was denied so brought an action in the German courts, who asked the Court of Justice to clarify the scope of the directive on markets in financial instruments which provides that competent authorities are under an obligation of professional secrecy other than in situations exhaustively listed in the schedule.

The Court held that all information relating to the supervised undertaking, Phoenix, and communicated by it to the competent authority does not constitute, unconditionally, confidential information that is covered by the obligation to maintain professional secrecy. Information held by them which is not public and may adversely affect the interests of the person who provided the information, or the proper functioning of their monitoring system, must be so classified.

In addition, information that could constitute business secrets generally loses its secret nature when it is five years old. This may not always be the case where it still relates to an essential commercial position, but this has nothing to do with the current case.

However, the Court stated that the Member States remain free to decide to extend the protection against disclosure to the entire contents of the supervision files of the competent authorities or indeed documents under their control which are not confidential. The aim of the directive is to impose on the competent authorities the obligation to refuse, as a general rule, confidential information.

Parliamentary Procedure

T-86/17 Marine Le Pen v European Parliament

Judgment Date 19 June 2018

Marine Le Pen was an MEP from 2009 to 2017. On 5 December 2016, Parliament decided that between 2010 and 2016, €298,497.87 had been unduly paid to Ms Le Pen in respect of assistance she could not evidence the existence of linked actually, directly or exclusively to her mandate, and that therefore this should be paid back. Ms Le Pen requested the General Court annul this decision.

The Court rejected the entirety of Ms Le Pen’s arguments, saying that the Secretary-General of Parliament was competent to come to this decision, the competence of Parliament to recover sums does not undermine the independence of MEPs, her rights of defence were not breached, it is for MEPs and not Parliament to prove their expenses and that she was not the subject of discriminatory treatment.

Moreover, the Court found that Ms Le Pen had not been able to prove that her assistant did actual work for her. No evidence had been provided of any sort – she acknowledged this in the hearing – and this extended not only to their work but also their presence, which was claimed but not proved, both in Parliament and on a residential level in Brussels.

Advocate General Opinions

European Parliamentary Procedure

C-73/17 France v European Parliament

Opinion delivered 5 June 2018 by Advocate General Melchior Wathelet

France asked the Court of Justice to annul several acts of the European Parliament concerning the adoption of the EU’s 2017 general budget as the debate, voting and adoption of the act should have been at an ordinary plenary part-session of the Parliament in Strasbourg and not the additional plenary part-session in Brussels on 30 November and 1 December 2016. Advocate General Wathelet has opined that the Court should uphold France’s action and annul the act by which the budget was definitively adopted whilst maintaining its effects until the situation is remedied.

The Advocate General pointed out that the relevant protocols refer to Strasbourg ‘where the 12 periods of monthly plenary sessions, including the budget session, shall be held’. It can therefore be assumed that the in that context refers to the exercise of budgetary powers as a whole, rather than specific stages.

In relation to the vote, the Advocate General pointed out that Parliament can decide to hold a plenary part-session away from Strasbourg but only on an exceptional basis and for objective reasons. The current case is only the sixth time since 1993 that the EU’s budget has been voted on in this way and was done so due to time constraints (November’s plenary session was the only one in which the budget could be debated and voted on). Indeed, the documents relating to the debate were only available in the 24 official languages less than one hour before the end of the ordinary part-session in Strasbourg. This, therefore, is an objective reason to have the vote at an additional plenary part-session.

However, the act by President adopting the budget is not subject to any time limited. Therefore, that could have been done in Strasbourg’s December 2016 plenary session. This act, then, should be annulled by the Court which would invalidate the EU’s 2017 budget. Since this budget has entirely elapsed, the Advocate General considers it justified to maintain its effects until a new act is validly adopted in Strasbourg.

Immigration

C-391/16, C77/17 and C-78/17 M v Ministerstvo vnitra and X v Commissaire general aux refugies et aux apatrides

Opinion delivered 21 June 2018 by Advocate General Melchior Wathelet

Case C-77/17 concerned X, an Ivorian national, who applied for asylum in Belgium. Belgium refused X on grounds of him being a danger to society as he had previously been convicted of several serious offences. This was done under legislation transposing Directive 2011/95/EU allowing transposing the EU’s Qualification Directive. Case C-78/17 concerned X, a Congolese national, who was granted asylum by Belgium but was later convicted and imprisoned for serious offences. Belgium subsequently withdrew his refugee status. Case C-391/16 concerned a Chechen man, M, granted refugee status in the Czech Republic. Prior to that, M had been convicted of serious offences and was again convicted of a serious offence after being granted such status. The Czechs revoked his refugee status on the grounds he represented a danger to state security.

All 3 men appealed to the respective national courts, who in turn asked the Court of Justice whether provisions allowing Member Status to refuse or revoke refugee status infringe the Geneva Convention of the Status of Refugees and are therefore invalid in light of the Charter of Fundamental Rights and the TFEU.

The Advocate General that the revocation or refusal to grant refugee status does not mean the individual is no longer a refugee; being a refugee and having refugee status are two distinct concepts. Refugee status designates the benefit of rights deriving in principle from the recognition of refugees in the Directive, in contrast a refugee is simply anyone who qualifies to be so. Some of these rights (such as the right to a residence permit, the recognition of qualifications and healthcare) have no equivalent in the Geneva Convention. Others are guaranteed only to refugees who are legally resident in the country of refuge. Therefore, the Advocate General considers that where refugee status is revoked or refused, the individual no longer has these rights under the Directive, it being understood that they are still a refugee with rights under the Geneva Convention (such as rights to non-discrimination, access to justice and protection against deportation). Furthermore, the refusal of refugee status by a Member State does not preclude it from its obligation to study the application or recognise the individual’s status.

Therefore, the Advocate General concluded that the provisions of the Directive allowing a Member State to revoke or refuse refugee status do not infringe the Geneva Convention and, accordingly, are compatible with the provisions of the TFEU and the Charter.

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