June case law digest

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This month’s CJEU cases include Facebook data protection,rules of equal treatment, non-discrimination and proportionality laid down in Article 21 of the Charter of Fundamental Rights of the European Union and many more.

1. Decided Cases

Provisions governing the institutions

Case T‑399/17 John Dalli v Commission

EU memeber state: Luxembourg

Date of decision: 06/06/2019

The General Court dismissed the action by judgement of 12 May 2015, brought by Mr John Dalli former European Commissioner, seeking annulment of the ‘oral decision of 16 October 2012 of termination of his office, taken by the President of the Commission’ which also includes compensation for damage of 1 symbolic euro for non-material damage and, on a provisional basis, of €1,913,396 for material damage. The appeal brought by Mr Dalli against the judgement was dismissed by the Court of Justice on 14 April 2016.

Another action before the court was brought by Mr Dalli, for compensation for the damage, in particular non-material damage, caused to him, principally, by the alleged unlawful conduct of the commission, including OLAF, connected with the termination of his office as a Member of the commission, with immediate effect, on 16 October 2012.

The Court of Justice rejected all seven complaints concerning the unlawfulness of OLAF’s conduct put forward by Mr Dalli and also rejected the two complaints concerning the unlawfulness of the commission’s conduct also put forward by Mr Dalli. The Court of Justice held that Mr Dalli had failed to demonstrate the existence of unlawful conduct on the part of OLAF or the Commission and concluded by way of examination there was no establishment of the existence of a sufficiently direct causal link between the conduct complained of and the damage alleged, or even the existence of the latter.

Press Release on this case is available here

Freedom of establishment

Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited

EU member state: Austrian

Date of decision: 04/06/2019

A Facebook user had shared, on their personal page, an article from the Austrian online news magazine oe24.at entitled ‘Greenes: Minimum income for refugees should stay’. The particular publication had generated on Facebook a ‘thumbnail’ of the website oe24.at, containing the title and a brief summary of the article, expressing comment about Ms Glawischnig-Piesczek which could be accessed by any Facebook user.

After an attempt to request to Facebook for the comment to be deleted, Ms Glawischnig-Piesczek sought an order to the Supreme courts in Austria, requiring Facebook to cease publication and/or dissemination of photographs of Ms Glawischnig-Piesczek if the accompanying message disseminated the same allegations as the comment in question and/or ‘equivalent content’.

The Supreme Court made the interlocutory order applied for, and Facebook disabled access in Austria to the content initially published. The Supreme Court requested the Court of Justice to interpret the Directive on electronic commerce on the question of whether the injunction can also be extended, worldwide, to statements with identical wording and/or having equivalent content of which Facebook is not aware.

The Advocate General Maciej Szpunar considered that the Directive on electronic commerce does not preclude a host provider which operates a social network platform, such as Facebook, from being ordered, in the context of an injunction, to seek and identify, among all the information disseminated by users of that platform, the information identical to the information that has been characterised as illegal by a court that issued that injunction. Furthermore, the Advocate General, held that since the directives does not regulate the territorial scope of an obligation to remove information disseminated via a social network platform, it does not preclude a host provider from being ordered to remove such information worldwide.

Press Releases on this case is available here

Approximation of laws

Case C-363/18 Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l’Economie et des Finances

EU member state: France

Date of decision: 26/06/2019

French Ministers for the Economy and Finance published a notice to economic operators concerning the indication of origin of goods originating in the territories occupied by Israel since 1967.The notice specified that “Foodstuffs” from the territories occupied by Israel must therefore be labelled to reflect the origin and requiring products having such origin to include the term “Israel settlement” or equivalent terms. The Organisation juive Europeans and Psagot both sought the annulment of the disputed notice before the Council of State, France.

The compatibility of the French notice with EU law was considered by the Court of Justice; the meaning of the terms ‘country of origin’ and place of provenance’ where examined in the light of the Regulation. The Advocate General concluded that the absence of the indication of country of origin or place of provenance of a product originating in a territory occupied by Israel and, in any event, a settlement colony, might mislead the consumer as to the true country of origin or place of prominence of the food.

The Advocate General states that the Court should rule that EU law requires for a product originating in a territory occupied by Israel since 1967, the indication of the geographical name of this territory and the indication that the product comes from Israeli settlement is that is the case. The second question considered by the Advocate General was whether EU law allows Member of state to introduce national measures with additional mandatory particulars such as whether a Member State may itself require indication of the territory of product originating in a territory occupied by Israel since 1967 and, in addition, that this product comes from an Israel settlement if that is the case.

The Advocate General referring to the Regulations states that the fact that a territory is occupied by an occupying power or that a particular foodstuff is produced by a person living in a settlement is not likely to give or modify certain qualities of the foodstuff in relation to its origin or provenance, atleast so far as the food products originating in occupied territories are concerned.

It was proposal to the court by the Advocate General that the court should rule that Member States may not require for the purpose of the Regulation the indication of the territory of a product originating in a territory occupied by Israel since 1967, nor that such product comes from an Israeli settlement.

2. Upcoming cases

Case C-311/18 – Facebook Ireland and Schrems

Member State: Ireland

Hearing Date at CJEU: 09/09/2019

Questions referred by the Irish Court:

In circumstances in which personal data is transferred by a private company from a European Union (EU) member state to a private company in a third country for a commercial purpose pursuant to Decision 2010/87/EU1 as amended by Commission Decision 2016/22972 (“the SCC Decision”) and may be further processed in the third country by its authorities for purposes of national security but also for purposes of law enforcement and the conduct of the foreign affairs of the third country, does EU law (including the Charter of Fundamental Rights of the European Union (“the Charter”)) apply to the transfer of the data notwithstanding the provisions of Article 4(2) of TEU in relation to national security and the provisions of the first indent of Article 3(2) of Directive 95/46/EC3 (“the Directive”) in relation to public security, defence and State security?

(1) In determining whether there is a violation of the rights of an individual through the transfer of data from the EU to a third country under the SCC Decision where it may be further processed for national security purposes, is the relevant comparator for the purposes of the Directive:

The Charter, TEU, TFEU, the Directive, ECHR (or any other provision of EU law); or

The national laws of one or more member states?

(2) If the relevant comparator is b), are the practices in the context of national security in one or more member states also to be included in the comparator?

When assessing whether a third country ensures the level of protection required by EU law to personal data transferred to that country for the purposes of Article 26 of the Directive, ought the level of protection in the third country be assessed by reference to:

The applicable rules in the third country resulting from its domestic law or international commitments, and the practice designed to ensure compliance with those rules, to include the professional rules and security measures which are complied with in the third country;

or

The rules referred to in a) together with such administrative, regulatory and compliance practices and policy safeguards, procedures, protocols, oversight mechanisms and non judicial remedies as are in place in the third country?

Given the facts found by the High Court in relation to US law, if personal data is transferred from the EU to the US under the SCC Decision does this violate the rights of individuals under Articles 7 and/or 8 of the Charter?

Given the facts found by the High Court in relation to US law, if personal data is transferred from the EU to the US under the SCC Decision:

Does the level of protection afforded by the US respect the essence of an individual’s right to a judicial remedy for breach of his or her data privacy rights guaranteed by Article 47 of the Charter?

If the answer to a) is yes,

Are the limitations imposed by US law on an individual’s right to a judicial remedy in the context of US national security proportionate within the meaning of Article 52 of the Charter and do not exceed what is necessary in a democratic society for national security purposes?

(1) What is the level of protection required to be afforded to personal data transferred to a third country pursuant to standard contractual clauses adopted in accordance with a decision of the Commission under Article 26(4) in light of the provisions of the Directive and in particular Articles 25 and 26 read in the light of the Charter?

(2) What are the matters to be taken into account in assessing whether the level of protection afforded to data transferred to a third country under the SCC Decision satisfies the requirements of the Directive and the Charter?

Does the fact that the standard contractual clauses apply as between the data exporter and the data importer and do not bind the national authorities of a third country who may require the data importer to make available to its security services for further processing the personal data transferred pursuant to the clauses provided for in the SCC Decision preclude the clauses from adducing adequate safeguards as envisaged by Article 26(2) of the Directive?

If a third country data importer is subject to surveillance laws that in the view of a data protection authority conflict with the clauses of the Annex to the SCC Decision or Article 25 and 26 of the Directive and/or the Charter, is a data protection authority required to use its enforcement powers under Article 28(3) of the Directive to suspend data flows or is the exercise of those powers limited to exceptional cases only, in light of Recital 11 of the Directive, or can a data protection authority use its discretion not to suspend data flows?

(1) For the purposes of Article 25(6) of the Directive, does Decision (EU) 2016/12504 (“the Privacy Shield Decision”) constitute a finding of general application binding on data protection authorities and the courts of the member states to the effect that the US ensures an adequate level of protection within the meaning of Article 25(2) of the Directive by reason of its domestic law or of the international commitments it has entered into?

(2) If it does not, what relevance, if any, does the Privacy Shield Decision have in the assessment conducted into the adequacy of the safeguards provided to data transferred to the United States which is transferred pursuant to the SCC Decision?

Given the findings of the High Court in relation to US law, does the provision of the Privacy Shield ombudsperson under Annex A to Annex III of the Privacy Shield Decision when taken in conjunction with the existing regime in the United States ensure that the US provides a remedy to data subjects whose personal data is transferred to the US under the SCC Decision that is compatible with Article 47 of the Charter?

Does the SCC Decision violate Articles 7, 8 and/or 47 of the Charter?

Case C-421/18 – Ordre des avocats du barreau de Dinant

Member State: France

Opinion Date at CJEU: 11/07/2019

Question referred by the French Court:

Is the action brought by a Bar Association seeking an order that one of its members pay the annual professional fees owed to it a matter “relating to a contract” within the meaning of Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

Case C-507/18 – Associazione Avvocatura per i diritti LGBTI

Member State: Italy

Hearing Date at CJEU: 15/07/2019

Questions referred by the Italian Court:

Must Article 9 of Directive 2000/78/EC 1 be interpreted as meaning that an association composed of lawyers specialised in the judicial protection of LGBTI persons, the statutes of which state that its objective is to promote LGBTI culture and respect for the rights of LGBTI persons, automatically, as a legal person having a collective interest and as a non-profit association, has standing to bring proceedings, including in respect of a claim for damages, in circumstances of alleged discrimination against LGBTI persons?

On a proper construction of Articles 2 and 3 of Directive 2000/78/EC, does a statement expressing a negative opinion with regard to homosexuals, whereby, in an interview given during a radio entertainment programme, the interviewee stated that he would never appoint an LGBTI person to his law firm nor wish to use the services of such persons, fall within the scope of the anti-discrimination rules laid down in that directive, even if that statement does not relate to any current or planned recruitment procedure by the interviewee?

Case C-103/18 – Sánchez Ruiz

Member State: Spain

Opinion Date at CJEU: 11/07/2019

Questions referred by the Spanish Court:

Can a situation such as that described in the present case (in which the public-sector employer fails to observe the statutory time limits and thus either permits successive temporary contracts or preserves the temporary nature of the appointment by changing the nature of the appointment from occasional to interim or replacement) be considered an abusive use of successive appointments and therefore be regarded as a situation described in Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC? 1

Must the provisions in the Framework Agreement on fixed-term work in the Annex to Directive 1999/70/EC, in conjunction with the principle of effectiveness, be interpreted as precluding national procedural rules that require a fixed-term worker actively to challenge or appeal against all the successive appointments and terminations of employment as the only way in which to benefit from the protection of the EU Directive and claim the rights conferred on him by EU law?

In view of the fact that, in the public sector and in the provision of essential services, the necessity of providing cover for vacancies, sickness, holidays … is essentially ‘permanent’, and given that the concept of ‘objective reason’ justifying a fixed-term appointment has to be delimited:

Can it be held to be contrary to Directive 1999/70/EC (Clause 5(1)(a)) and, therefore, that there is no objective reason, when a fixed-term worker is employed under an uninterrupted succession of ‘contratos de interinidad’ (temporary replacement contracts), working all or nearly all the days of the year, under a succession of consecutive appointments/engagements that continue on a completely stable basis for years, and the stated grounds for engaging the worker are always satisfied?

Must the need be considered permanent rather than temporary, and therefore not to be covered as an ‘objective reason’ within the meaning of Clause 5(1)(a), having regard either to the parameters described above, that is to say, the existence of countless appointments and engagements that extend over a period of years, or to the existence of a structural defect that is reflected in the percentage of temporary appointments in the sector in question, when those needs are as a general rule always met by temporary workers, so that this has become an essential and long-term element of the operation of the public service?

Or is it to be understood that, in essence, in order to determine the permitted limit for temporary appointments, regard must be had only to the letter of the legislation that covers the employment of such fixed-term workers, when it states that they may [Or. 26] be taken on on grounds of necessity, urgency or for the development of programmes of a temporary, cyclical or extraordinary nature: in short, that in order for an objective reason to be deemed to exist, such employment must meet these exceptional circumstances, and that this ceases to be the case, and use therefore constitutes misuse, when it is no longer isolated, occasional or ad hoc?

Is it compatible with the Framework Directive annexed to Directive 1999/70/EC to regard grounds of need, urgency or the development of programmes of a temporary, interim or extraordinary nature as an objective reason for appointing and successively reappointing IT specialists on temporary regulated terms where these public employees are performing the normal functions of permanent regulated employees on a permanent and regular basis, and the employing Administration neither establishes maximum limits to such appointments nor fulfils its legal obligations to use permanent staff to cover these posts and meet these needs, and no equivalent measure is established to prevent and avoid misuse of successive temporary appointments, with the result that IT specialists employed on temporary regulated terms continue to carry out these duties for periods that, in the present case, amount to an uninterrupted duration of 17 years?

Are the provisions in the Framework Agreement on fixed-term work in the Annex to Directive 1999/70/EC and the interpretation of that Agreement by the CJEU compatible with the case-law of the Tribunal Supremo (Supreme Court, Spain), insofar as it fixes the existence of an objective reason for an appointment by reference to the time limit to the appointment, without regard to other parameters, or finds that there can be no comparison made with a career public official because of the different legal rules covering them and different access routes or because career officials are permanently established but employees recruited to cover vacancies hold temporary appointments?

If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the Madrid Health Service and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?

If the answer should be affirmative, as held by the Court of Justice of the European Union in paragraph 41 of its judgment of 14 September 2016 in Cases C 184/15 and C 197/15: 2

As a measure to prevent and penalise the misuse of successive temporary contracts and to eliminate the consequence of the breach of EU law, would it be consistent with the objectives pursued by Directive 1999/70/EC to convert the temporary interim/occasional/replacement regulated relationship into a stable regulated relationship, the employee being classified as a permanent official or an official with an appointment of indefinite duration, with the same security of employment as comparable permanent regulated employees?

If there is abuse of successive temporary contracts, can the conversion of the temporary regulated relationship into an indefinite or permanent relationship be regarded as satisfying the objectives of Directive 1999/70/EC and its Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated IT specialists?

In the circumstances described here, is there an obligation under EU law to review final judgments/administrative acts when the four conditions laid down in Kühne & Heitz NV (C 453/00 of 13 January 2004) 3 are met: (1) Under Spanish national law, the authorities and the courts may review decisions (even if the restrictions involved make it very difficult or even impossible); (2) The contested decisions have become final as a result of a judgment of a national court issued in sole or final instance; (3) That judgment is based on an interpretation of EU law inconsistent with the case-law of the CJEU and adopted without a question being referred to the CJEU for a preliminary ruling; and (4) The person concerned applied to the administrative body as soon as it knew of the relevant case-law?

May and must national courts, as European courts that must give full effect to EU law in the Member States, require and order the internal administrative authority of a Member State — within its respective area of jurisdiction — to adopt the relevant measures in order to eliminate rules of domestic law incompatible with EU law in general, and with Directive 1999/70/EC and its Framework Agreement in particular?

Case C-414/18 – Iccrea Banca

Member State: Italy

Opinion Date at CJEU: 09/07/2019

Question referred by the Italian Court:

Does Article 5(1), in particular subparagraphs (a) and (f), of Delegated Regulation 2015/63, 1 interpreted in the light of the principles referred to in that regulation, in Directive 2014/59, 2 Regulation No 806/2014 3 and Article 120 of the Treaty on the Functioning of the European Union, the fundamental rules of equal treatment, non-discrimination and proportionality laid down in Article 21 of the Charter of Fundamental Rights of the European Union, and the prohibition on levying double contributions, preclude, for the purpose of calculating the contributions referred to in Article 103(2) of Directive 2014/59, the application of the regime laid down for intragroup liabilities also in the case of a ‘de facto’ group or, in any event, in the case of interconnectedness between an institution and other banks forming part of the same system? Alternatively, in the light of the above-mentioned principles, may the preferential treatment reserved for liabilities arising in respect of promotional loans in Article 5 of Delegated Regulation 2015/63 also be applied, by analogy, to the liabilities of a ‘second-level’ bank vis-à-vis other banks in the (cooperative credit) system, or should that characteristic of an institution, in fact operating as a central bank within an interconnected and integrated group of small banks, including in its relations with the European Central Bank and the financial markets, give rise, under existing rules, to some form of adjustment to the financial data submitted by the national resolution authority to the relevant Community bodies and to the determination of the contributions payable by the institution to the resolution fund in respect of its actual liabilities and risk profile?

Case C-729/17 (2018/C 083/22)

Date of Opinion at CJEU: 26/06/2019 

Form of order sought:

The European Commission claims that the Court should:

  • declare that, by restricting the legal form of mediation training service providers to non-profit companies, which have to be set up by at least one Bar Association and at least one Professional Chamber in Greece, as enacted in Law 3898/2010 and Presidential Decree 123/2011, Greece has failed to fulfil its obligations under Article 49 TFEU and Article 15(2)(b) and (c) and (3) of Directive 2006/123/ΕC.
  • declare that, by subjecting the procedure for the recognition of academic qualifications to preconditions: the imposition of additional requirements related to the content of certificates and the imposition of compensatory measures without a prior assessment of real differences, and by maintaining in force provisions which lead to discrimination by requiring applicants for accreditation as professional mediators who have accreditation that was obtained outside Greece or from a recognised provider of training outside Greece following training provided in in Greece, to possess experience of having taken part in at least three mediation procedures, Greece has failed to fulfil its obligations under Article 49 TFEU, and Articles 13, 14 and 50(1) of, and Annex VII to, Directive 2005/36/ΕC 2 .
  • order the Hellenic Republic to pay the costs.

Case C-247/18 P

Hearing Date at CJEU: 26/06/2019

Questions referred by the Belgium Court:

[The] request for a preliminary ruling concerning the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 [is] worded as follows:

Does the circumstance at issue in the present proceedings, that is to say, the spillage of petrol on a runway which caused that runway to be closed, fall to be classified under the notion of an ‘event’ within the meaning of paragraph 22 of the judgment of 22 December 2008, Wallentin-Hermann (C-549/07, EU:C:2008:771), or under that of ‘extraordinary circumstances’ within the meaning of recital 14 of that regulation, as interpreted by the judgment of 31 January 2013, McDonagh (C-12/11, EU:C:2013:43), or do those two concepts overlap?

Must Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, be interpreted as meaning that an event such as that at issue in the present proceedings, that is to say, the spillage of petrol on a runway which caused that runway to be closed, must be found to be an event inherent in the normal exercise of the activity of an air carrier and, accordingly, cannot be classified as an ‘extraordinary circumstance’ capable of exonerating the air carrier from its obligation to compensate passengers in the case where a flight operated by that carrier is subjected to a significant delay?

If an event such as that at issue in the present proceedings the spillage of petrol on a runway which caused that runway to be closed, must be found to be an ‘extraordinary circumstance’, must it be inferred from this that, for the air carrier, this is an ‘extraordinary circumstance’ that could not have been avoided even if all reasonable measures had been taken?

Case C-396/18

Hearing date at CJEU: 26/06/2019

Questions referred by Italian court:

Is the national legislation set out in the Prime Ministerial Decree of 9 September 2008, in implementation of the third paragraph of Article 748 of the Navigation Code, which regulates the limitations on employment for DQ aircrew and in particular provides for the automatic termination of the employment relationship once a pilot reaches the age of 60, contrary to Regulation No 1178/2011 1 in so far as that regulation sets 65 years as the age limit for employing pilots in commercial air transport, and would that regulation, if the special national legislation were to be disapplied, be applicable to the present case?

In the alternative, if that regulation is held not to be applicable rationed material to the present case, is the aforementioned national legislation contrary to the principle of non-discrimination on the ground of age laid down in Directive 2000/78 2 and in Article 21(1) of the Charter of Fundamental Rights of the European Union, to which Directive 2000/78 gives practical expression?

Case C-407/18

Hearing date at CJEU: 26/06/2019

Question referred by the Slovenia Courts:

In the light of the principle of effectiveness of EU law, should Council Directive 93/13/EEC (1) be interpreted as meaning that, in enforcement proceedings, the court responsible for enforcement is required of its own motion to refuse enforcement on the ground that a directly enforceable notarial instrument (enforceable measure) contains an unfair clause, in a case such as that under consideration, in which the procedural rules of the Member State do not allow the court responsible for enforcement to suspend or stay enforcement (upon application by the debtor or of its own motion) until a final substantive decision on whether the term is unfair is given at the end of proceedings for declaratory relief brought by the debtor as consumer?

Case C-465/18

Hearing date at CJEU: 03/07/2019

Question referred by Italian courts:

Do the principles of freedom of establishment, non-discrimination, equal treatment, the protection of competition and freedom of movement for workers, referred to in Articles 45, 49 to 56 and 106 TFEU and in Articles 15 and 16 of the Charter of Fundamental Rights of the European Union, and the requirements of proportionality and reasonableness inherent in those principles, preclude a provision of national law, such as Article 12(2) of Law No 362/1991, which, in the event of the transfer of ownership of a municipal pharmacy, confers a right of pre-emption on the employees of the pharmacy in question?

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