December case law digest

Decided Cases:

Joined cases C-566/19 PPU, C-626/19 PPU, C-625/19 PPU and C-627/19

EU Member State: France, Sweden and Belgium

Date of Decision: 12 December 2019

The Court of Justice in this decision has supplemented its recent case-law on the Framework Decision of 2005/584 on the European arrest warrant, providing guidance on the requirement of the independence of the ’issuing judicial authority’ in the case of a European arrest warrant and on the requirement of effective judicial protection, which must be afforded to persons subject to an arrest warrant. 

In each of these cases, the question arose as to whether a public prosecutor’s office had a sufficient degree of independence for the purpose of issuing European arrest warrants. The Court ruled that it did have such a degree of independence.

The Court concluded that the concept of ‘issuing judicial authority’ is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice and act independently. There is a presumption, however, that the authority concerned would not be exposed to any directions or instructions of the executive when issuing the warrant. 

The Court confirmed that it is for the Member States to ensure that their legal orders effectively safeguard the requisite level of judicial protection  by means of the procedural rules they implement and which may vary from one system to another. Effective judicial protection will be satisfied where there is a form of judicial review of the conditions for issuing a warrant, in particular its proportionality. 

 

Case C-671/18

EU Member State: Poland

Date of Decision: 5 December 2019

Z.P was issued with a road traffic offence fine in the Netherlands in 2017. This offence was committed by the driver of a vehicle registered in Poland. The Netherlands Highway Code establishes that, unless proven otherwise, liability rests with the person whose name the vehicle is registered. 

Z.P received notice of the fine by receiving it in his letterbox. In the absence of an appeal, the decision became final on 21 December 2017.

The Netherlands Central Fine Collection Agency, sent a request to the District Court in Chelmno, Poland, asking that it execute the decision on the basis of the relevant EU Framework Decision. Z.P submitted before that court that on the date of the contested offece he had already sold the vehicle and had informed his insurer of that fact, although he had not informed the authority responsible for registration of the vehicle. 

In this context, the Polish court asked the Court of Justice whether the fine imposed on the basis of vehicle registration was compatible with the principle under Polish law, where criminal liability rests with the individual., 

The Court of Justice held that the Framework Decision is intended to establish an effective mechanism for recognition and enforcement of cross-border decisions that impose fines. Therefore, any grounds for refusal must be interpreted restrictively. 

The Court of Justice held that the Polish court can establish whether Z.P received the decision imposing the financial penalty and whether he had enough time to prepare his defence. However, if this was established to be the case, the Polish authority is obliged to impose the fine without any further formality. 

Since the presumption of liability laid down in the Netherlands Highway Code may be rebutted and it is established that Z.P did in fact have a legal basis on which to seek annulment of the decision, the presumption of liability cannot impede recognition and enforcement of that decision. 

 

Decision in case 1484/2019/UNK on the European Commission’s handling of a request for full public access to drafts of an article on the copyright directive published on the Commission’s website

Date of Decision: 2 December 2019

The case concerned the European Commission’s decision to redact the names of Commission staff members from a document before granting the complainant public access to it.

The Ombudsman found that the Commission was correct to redact the names.

Background to the complaint

In February 2019, the Commission published an article related to the Copyright Directive on one of its social media platforms. A short time later, it removed the article and stated, in its place, that: “This article published by the Commission services was intended to reply to concerns, but also to misinterpretations that often surround the copyright directive proposal. We acknowledge that its language and title were not appropriate, and we apologise for the fact that it has been seen as offending”.

On 16 February, the complainant, who is an advocate for an internet information resource, requested public access to all drafts of the article.

On 1 April, the Commission granted partial access to an internal Commission email exchange in which the article was contained. In doing so, it redacted the names of Commission staff contained in the email exchange (specifically, it redacted the email addresses and ‘signatures’ at the bottom of emails). It stated that these redactions were in line with the rules regarding the protection of personal data contained in Article 4(1)(b) of Regulation 1049/2001[2] and Regulation 2018/1725[3].

On 10 April, the complainant submitted a request for review, a so-called “confirmatory application”, to the Commission, stating that public disclosure of the names was justified.

On 26 June 2019, the Commission confirmed its decision to grant partial public access to the document.

The Inquiry

The Ombudsman opened an inquiry into the Commission’s handling of the request for full public access.

In the course of the inquiry, the Ombudsman received an unredacted copy of the requested document from the Commission.

Issue

Arguments presented to the Ombudsman

The complainant disagreed with the Commission’s redaction of the names of Commission staff. He considered that their public disclosure was justified because (he alleges) the name of the author of the article is already publicly known (he provided the Commission with the name of the person who he believed was the author).

When submitting his complaint to the Ombudsman, the complainant also argued that public disclosure of the names of Commission staff would inform the public about how the Commission decided to publish the article.

The complainant also stated that he suspected that the Commission did not disclose all the drafts of the article.

The Commission considered that the names of Commission staff are ‘personal data’. The Commission explained that, in accordance with Article 9(1)(b) of Regulation 2018/1725, ‘personal data’ may be publicly disclosed only if there is a ‘necessity’ to have the data disclosed. That ‘necessity’ must be for a specific purpose and the ‘specific purpose’ must be in the public interest. The Commission noted, however, that the complainant had not explained how the disclosure of the names of its staff was necessary to achieve a specific purpose in the public interest.[4] It stated that the complainant’s argument, that the names should be disclosed because the name of the author of the article is already publicly known, is not convincing.

The Commission also noted that there is a real and non-hypothetical risk that public disclosure of the names of its staff would harm the privacy of these persons and subject them to unsolicited external contacts.

The Ombudsman’s assessment

The Ombudsman notes that the names of Commission staff members are ‘personal data’ of the staff members in question. Public access to those names must be refused unless the legal standard set by Article 9(1)(b) of Regulation 2018/1725 is met. In accordance with this legal standard, personal data may be publicly disclosed only if there is a ‘necessity’ to have the data disclosed. That ‘necessity’ must be for a ‘specific purpose’ and the ‘specific purpose’ must be in the public interest. Even if that part of the test is met, access can still be denied in the light of a proportionality test in which any ‘legitimate interests’ of the persons concerned are taken into account.

The Ombudsman considers that the complainant did not provide the Commission with any convincing argument demonstrating why the disclosure of the names of Commission staff was necessary.

The complainant argued that the names of the Commission staff should be disclosed because the identity of the author of the article is known. Even if the identity of the author of the article was known, this would not mean that there is any need to disclose the names of Commission staff contained in the email exchange.

The complainant also informed the Ombudsman that disclosing the names of staff would inform the public about how the article was published. The Ombudsman notes that the complainant has not put forward this argument to the Commission when submitting his initial and confirmatory applications. He only made this argument when submitting his complaint to the Ombudsman. In any event, the Ombudsman has examined the document in question. In light of this examination, she does not agree that disclosing the names of the Commission staff members would shed any light on how the article in question was published.

Regarding the complainant’s concern that the Commission did not disclose all the drafts of the article, the Ombudsman notes that there is no evidence that the Commission holds any other drafts of the document. Indeed, the content of the email exchange does not lead to a conclusion that there were other drafts of the article in the possession of the Commission.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Commission.

The complainant and the European Commission will be informed of this decision.

 

Upcoming cases

Case C-756/18 - Varhoven kasatsionen sad na Republika Bulgaria

Member State: Bulgaria

Date of Judgement: 11 December 2019

Question referred by the Bulgarian Court:

Question referred

1. Must Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time be interpreted as precluding national legislation and/or case-law, according to which a worker who has been unfairly dismissed and subsequently reinstated by a court decision, is not entitled to paid annual leave for the period from the date of dismissal until the date of his reinstatement?

2. In the event that the first question is answered in the affirmative, must Article 7(2) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time be interpreted as precluding national legislation and/or case-law, according to which in the event that the employment relationship terminated once again the worker in question is not entitled to financial compensation for unused paid annual leave for the period from the date of his previous dismissal until the date of his reinstatement?

 

 

Case C-37/19 - CV v Iccrea Banca SpA Istituto Centrale del Credito Cooperativo

Member State: Italy

Date of Judgment: 11 December 2019

Questioned referred by the Italian Court:

Must Article 7(2) of Directive 2003/88/EC 1 and Article 31(2) of the Charter of Fundamental Rights of the European Union, taken separately where applicable, be interpreted as precluding provisions of national legislation or national practices pursuant to which, once the employment relationship has ended, the right to payment of an allowance for paid leave accrued but not taken (and for a legal arrangement, such as ‘abolished public holidays’, which is comparable in nature and function to paid annual leave) does not apply in a context where the worker was unable to take the leave before the employment relationship ended because of an unlawful act (a dismissal established as unlawful by a national court by means of a final ruling ordering the retroactive restoration of the employment relationship) attributable to the employer, for the period between that unlawful act by the employer and the subsequent reinstatement only?

 

C-61/19 - Orange Romania

Member State: Romania

Date of Judgment: 11 December 2019

Question referred by the Romanian Court:

For the purposes of Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, 1 what condition must be fulfilled in order for an indication of wishes to be regarded as specific and informed?

For the purposes of Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, what conditions must be fulfilled in order for an indication of wishes to be regarded as freely given?

 

Case C-456/18 P – Hungary v Commission

Member State: Hungary

Date of Opinion: 12 December 2019

Form of order sought by the Hungarian Court:

By its appeal, Hungary claims that the Court of Justice should:

• set aside the judgment of the General Court of 25 April 2018 in Joined Cases T-554/15 and T-555/15;
• annul in part Commission Decision C(2015) 4805 of 15 July 2015 on the health contribution of tobacco industry businesses in Hungary, in so far as that decision orders the suspension of the application of both the progressive tax rate of the health contribution and of the reduction of that contribution in the case of investments, as provided for in a dohányipari vállalkozások 2015. évi egészségügyi hozzájárulásáról szóló 2014. évi XCIV. törvény (Law No XCIV of 2014 on the health contribution for 2015 of tobacco industry businesses), adopted by the Hungarian Parliament;
• annul in part Commission Decision C(2015) 4808 of 15 July 2015 on the 2014 amendment of the Hungarian food chain inspection fee in so far as that decision orders the suspension of the application of the progressive rate of the food chain inspection fee;
• order the Commission to pay the costs of the proceedings.

 

Case C-674/18 - TMD Friction

Member State: Germany

Date of Hearing: 12 December 2019

Question referred by the German Court:

Does Article 3(4) of Council Directive 2001/23/EC ¹ of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses allow — in the event of a transfer of a business after the opening of insolvency proceedings regarding the assets of the transferor of the business under national law, which, in principle, also requires the application of Article 3(1) and (3) of Directive 2001/23/EC to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes — a restriction to the effect that the transferee is not liable for pension entitlements based on periods of service completed prior to the opening of the insolvency proceedings?

If the first question referred is answered in the affirmative:

In the event of a transfer of business after insolvency proceedings regarding the assets of the transferor of the business have been opened, are the measures necessary pursuant to Article 3(4)(b) of Directive 2001/23/EC to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary company or intercompany pension schemes based on the level of protection required by Article 8 of Directive 2008/94/EC ² of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer?

If the second question referred is answered in the negative:

Is Article 3(4)(b) of Directive 2001/23/EC to be interpreted to mean that the measures necessary to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary company or intercompany pension schemes have been taken if the national law provides that

the obligation to provide the employee covered by the transfer of a business in insolvency proceedings with old-age benefits under supplementary company or intercompany pension schemes in the future is transferred to the transferee of the business,

the transferee of the business is liable for future pension entitlements to the extent that they are based on periods of service completed after insolvency proceedings are opened,

in that case, the insolvency insurance institution designated under national law does not have to assume responsibility for the part of the future pension entitlements that was acquired before the insolvency proceedings had been opened, and

the employee may assert, in the insolvency proceedings of the transferor, the value of the part of the future pension entitlements that was acquired before the insolvency proceedings had been opened?

If, in the event of a transfer of a business, the national law also requires the application of Article 3 and Article 4 of Directive 2001/23/EC during insolvency proceedings, is Article 5(2)(a) of Directive 2001/23/EC applicable to employees’ pension entitlements under supplementary company or intercompany pension schemes that did arise before the insolvency proceedings had been opened, but do not lead to benefit entitlements on the part of the employee until the occurrence of the covered event and therefore not until a later point in time?

If the second or the fourth question referred is answered in the affirmative:

Does the minimum level of protection to be provided by the Member States pursuant to Article 8 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer also cover the obligation to guarantee pension entitlements that were not yet statutorily vested under national law when the insolvency proceedings were opened and that are only statutorily vested in the first place because the employment relationship is not terminated in connection with the insolvency?

If the fifth question referred is answered in the affirmative:

Under what circumstances can a former employee’s losses suffered in respect of occupational old-age pension benefits as a result of the insolvency of the employee be regarded as manifestly disproportionate and therefore oblige the Member States to ensure a minimum degree of protection against such losses pursuant to Article 8 of Directive 2008/94/EC, even though the employee will receive at least half of the benefits that will arise from his acquired pension rights?

If the fifth question referred is answered in the affirmative:

Is the protection for employees’ pension entitlements that is necessary pursuant to Article 3(4)(b) of Directive 2001/23/EC or Article 5(2)(a) of Directive 2008/94/EC — and is equivalent to that of Article 8 of Directive 2008/94/EC — also accorded if it does not arise from national law, but rather only from direct application of Article 8 of Directive 2008/94/EC?

If the seventh question referred is answered in the affirmative:

Does Article 8 of Directive 2008/94/EC also have direct effect, such that it can be asserted before the national court by an individual employee if, although he receives at least half of the benefits arising out of his accrued pension rights, his losses suffered as a result of the insolvency of the employer are nevertheless to be regarded as disproportionate?

If the eighth question referred is answered in the affirmative:

Is an institution organised under private law that the Member State has designated — in a manner that is binding on employers — as an insolvency insurance institution for occupational pensions that is subject to State supervision of financial services and levies the contributions required for insolvency insurance from employers under public law, and, like an authority, can establish the conditions for enforcement by way of an administrative act, a public body of the Member State?

 

Case C-719/18 - Vivendi SA v Autorità per le Garanzie nelle Comunicazioni

Member State: Italian

Date of Opinion: 12 December 2019

Question referred by the Italian Court:

While Member States have the ability to investigate when undertakings have a dominant position (and to impose specific obligations on those undertakings as a result), is Article 43(11) of Legislative Decree No 177 of 31 July 2005, in the version in force on the date of adoption of the contested decision, according to which ‘undertakings, including through subsidiaries or affiliates, whose revenues in the electronic communications sector, as defined by Article 18 of Legislative Decree No 259 of 1 August 2003, exceed 40 per cent of the total revenues in that sector, may not earn, within the Integrated Communications System, revenues exceeding 10 per cent of that system’ incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU?; is Article 43(11) of Legislative Decree No 177 of 31 July 2005 incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU, in so far as — through reference to Article 18 of the Codice delle comunicazioni elettroniche (Electronic Communications Code), it restricts the sector in question to the markets susceptible to ex ante regulation, regardless of what commonly happens, which is that information (the pluralism of which the rule is designed to protect) is increasingly conveyed by the use of the Internet, personal computers and mobile telephony, which is sufficient to make it unreasonable to exclude from that sector, in particular, retail mobile telephony services, simply because they operate completely competitively; is Article 43(11) of Legislative Decree No 177 of 31 July 2005 incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU, taking into account the fact that the Authority has defined the boundaries of the electronic communications sector, for the purposes of applying Article 43(11) [of Legislative Decree No 177/2005] in the course of the present proceedings, by taking into consideration only the markets where at least one analysis has been carried out since the entry into force of the Electronic Communications Code, that is, from 2003 to date, and with revenues resulting from the last useful assessment, carried out in 2015?

Do the principles of freedom of establishment and freedom to provide services laid down in Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) [and] Articles 15 and 16 of Directive 2002/21/EC ¹ [on a common regulatory framework for electronic communications networks and services] to safeguard pluralism and freedom of expression, together with the EU law principle of proportionality, preclude the application of national legislation concerning public broadcasting and audiovisual media services, such as that of Italy, contained in Article 43(11) and (14) [of Legislative Decree No 177/2005], according to which the revenues relevant for determining the second threshold of 10% can also be applied to undertakings that are not subsidiaries or under a dominant influence, but are even merely ‘affiliates’ within the meaning of Article 2359 of the Codice Civile (Civil Code) (referred to in Article 43(14) [of Legislative Decree No 177/2005]), even if it is not possible to exert any influence on the information being broadcast by those undertakings?

Do the principles of freedom of establishment and freedom to provide services laid down in Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) [and] Articles 15 and 16 of Directive 2002/21/EC, together with the principles on safeguarding pluralism of information sources and competition in the broadcasting sector laid down in Directive 2010/13/EU ² concerning audiovisual media services and in Directive 2002/21/EC, preclude national legislation such as Legislative Decree No 177/2005 which in Article 43(9) and (11) thereof sets very different thresholds (20% and 10% respectively) for ‘persons required to be entered in the Register of Communications Operators established under Article 1(6)(a)(5) of Law No 249 of 31 July 1997’ (that is, persons who have received a concession or authorisation under the legislation in force, from the Authority or from other competent administrative authorities, and concessionaires of advertising, however transmitted, publishers, and so on, referred to in Article 43(9)) and for undertakings operating in the electronic communications sector, as defined above (covered by Article 43(11))?

 

Case C-390/18 - Airbnb Ireland

Member State: French

Date of Opinion: 19 December 2019

Question referred by the French Court:

1. Do the services provided in France by the company Airbnb Ireland UC via an electronic platform managed from Ireland benefit from the freedom to provide services contemplated in Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000?

2. Are the restrictive rules relating to the exercise of the profession of real estate agent in France, laid down by Law No 70-9 of 2 January 1970 on intermediaries in real-estate transactions (‘the Hoguet Law’), enforceable against the company Airbnb Ireland UC?