Decided Cases
EU Member State: Romania
Date of Decision: 5 September 2019
The Romanian court sought a preliminary ruling from the Court of Justice to clarify the jurisdiction for child maintenance.
The question was whether, where the court of one Member State has jurisdiction for the divorce proceedings and another has jurisdiction for the proceedings concerning parental responsibility, the jurisdictional basis for the maintenance proceedings should rely on Article 3(d) of the European Maintenance Regulation, on the basis that the maintenance claim is ancillary to the parental responsibility proceedings.
If this was the case then the jurisdictional tests under Articles 3(a) and 5 of the EMR would be excluded and criteria such as where the defendant is habitually resident and the place where the defendant has appeared before the court would be excluded.
The Court of Justice clarified the application of Articles 3(a) and (d) and Article 5 of the EMR when the court of a Member State is faced with three joined claims concerning, respectively, the divorce of the parents of a minor, parental responsibility and maintenance obligations. The national court ruling on the divorce proceedings, which has declared that it has no jurisdiction to rule on the parental responsibility claim may, nevertheless, have jurisdiction to rule on the maintenance claim since the defendant is habitually resident in that Member State.
EU Member State: France
Date of Decision: 24 September 2019
The French court sought a preliminary ruling from the Court of Justice to clarify the interpretation of Directive 95/46/EC on the protection of individuals with regards to the processing of personal data and the free movement of such data.
The case arose out of a dispute between Google and the French Commission Nationale de l’informatique et des libertés, as to how a search engine operator should give effect to the right to de-referencing, where a data subject is entitled to have links to web pages containing his or her personal data removed from a list of results displayed after a search conducted on his or her name.
The question was whether a search engine operator was required to carry out de-referencing on:
(i) all versions of its search engine both inside and outside the EU;
(ii) all versions of the search engine corresponding to all Member States; or
(iii) only on the versions of the search engine that corresponds to the Member State in which the request for de-referencing was made.
The Court held that there is no obligation under EU law for a search engine operator who grants a request for de-referencing to carry out such a de-referencing on all versions of its search engine, as EU law does not currently provide for such cooperation instruments as regards the scope of de-referencing outside the Union.
However, as the EU has chosen to set down rules in form of a regulation, which is directly applicable by all Member States, that the de-referencing should in principle be carried out in respect of all the Member States. The Court did caveat this by pointing out that the interest of the public in accessing the information may, eve in the EU, vary from one Member State to another. To that end the various national supervisory authorities concerned must cooperate to reach a consensus and single decision.
C-136/17 - GC and Others (Déréférencement de données sensibles)
EU Member State: France
Date of Decision: 24 September 2019
This case, GC, AF, BH, ED v CNIL Case C-136/17, looks at the obligations of search engines when processing special category data.
GC, AF, BH and ED had all made de-listing requests to Google. Google had refused to de-list; the individuals complained to the CNIL, but the CNIL declined to require Google to delist – leading to court proceedings by the individuals against the CNIL. The search results for these individuals related to articles about an affair between a public official and a mayor, membership of the Church of Scientology, an article about the commencement of criminal proceedings (which were later closed with the individual being discharged) and an article about proceedings sentencing an individual for sexual assaults on children.
Search engines rely on their, and their users’, legitimate interests to provide a lawful basis for processing personal data when they return search results. This works for ‘ordinary’ personal data, but the legitimate interests condition is not applicable for special category data, or for data about criminal offences etc.. It has been difficult to see what condition search engines could most obviously rely on to justify processing of such data – either to justify returning search results containing such data in the first place, or to justify refusing a de-listing request. The CJEU was asked to consider this. The de-listing requests were all made under the 1995 Data Protection Directive but, as in the above Google case, the CJEU also considered equivalent provisions under the GDPR.
Google argued that it should be exempted from compliance with the restrictions on processing such data. The CJEU rejected this however accepted that the obligation to comply with the relevant restrictions only applied from the point at which a supervisory authority was asked to verify Google’s response to a de-listing request.
CJEU held the following points:
1. The provisions of Article 8(1) and (5) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out in connection with the activity of the search engine, on the occasion of a verification performed by that operator, under the supervision of the competent national authorities, following a request by the data subject.
2. The provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is in principle required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de-referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions.
Article 8(2)(e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de-referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by the exception in Article 8(2)(e) of the directive, provided that the processing satisfies all the other conditions of lawfulness laid down by the directive, and unless the data subject has the right under Article 14(a) of the directive to object to that processing on compelling legitimate grounds relating to his particular situation.
The provisions of Directive 95/46 must be interpreted as meaning that, where the operator of a search engine has received a request for de-referencing relating to a link to a web page on which personal data falling within the special categories referred to in Article 8(1) or (5) of Directive 95/46 are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive and in compliance with the conditions laid down in that provision, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter.
3. The provisions of Directive 95/46 must be interpreted as meaning that
- first, information relating to legal proceedings brought against an individual and, as the case may be, information relating to an ensuing conviction are data relating to ‘offences’ and ‘criminal convictions’ within the meaning of Article 8(5) of Directive 95/46, and
- second, the operator of a search engine is required to accede to a request for de-referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation, in so far as it is established in the verification of the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 that, in the light of all the circumstances of the case, the data subject’s fundamental rights guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union override the rights of potentially interested internet users protected by Article 11 of the Charter.
Upcoming cases
Hearing date at CJEU: 26/09/2019
Questions referred by the French Court:
Question referred:
Must Article 53 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs, 1 Article 6 of Commission Delegated Regulation (EU) No 664/2014 of 18 December 2013 supplementing Regulation (EU) No 1151/2012 of the European Parliament and of the Council with regard to the establishment of the Union symbols for protected designations of origin, protected geographical indications and traditional specialities guaranteed and with regard to certain rules on sourcing, certain procedural rules and certain additional transitional rules, 2 and Article 10 of Commission Implementing Regulation (EU) No 668/2014 of 13 June 2014 laying down rules for the application of Regulation (EU) No 1151/2012 of the European Parliament and of the Council, 3 in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that, in the specific case where the European Commission has upheld the application by the national authorities of a Member State seeking to have the specification of a name amended and to secure registration of the controlled designation of origin (appellation d’origine contrôlée), although that application is still the subject of an action pending before the national courts of that State, those courts may decide that there is no longer any need to adjudicate on the dispute, or, in view of the effects attached to a possible annulment of the contested measure on the validity of the registration by the European Commission, must those courts rule on the lawfulness of that measure adopted by the national authorities?
Hearing date at CJEU: 19/06/2019
Request referred by Northern Ireland Court:
Request:
1. By its request for a preliminary ruling, the Court of Appeal in Northern Ireland (United Kingdom) seeks from the Court an interpretation of Article 7(1)(b) of Directive 2004/38/EC. (2)
2. The questions raised by the referring court concern, in essence, the sufficiency of the resources which a Union citizen must have where those resources, made available to minor children who are citizens of the European Union, derive from income obtained from work carried out in a Member State by their father, a third-country national, who, having been granted residence and work permits in the past, no longer has those permits in that Member State because his residence card has expired.
3. Although the Court will, for the first time, address that specific question, it must nevertheless be pointed out that the provision at issue in the main proceedings has already been interpreted by the Court, inter alia, in the judgment in Zhu and Chen. (3)
4. Consequently, the present case will require the Court, in particular, to clarify the scope of that judgment within the specific context of the case in the main proceedings.
Hearing date at CJEU: 02/10/2019
Question referred by the Polish courts:
Questions referred:
Must the rule of EU law contained in Article 4(2)(a) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, 1 read in conjunction with Article 2(1)(c) thereof, be interpreted as meaning that that rule does not preclude the expression ‘a significant quantity of drugs’ from being interpreted on a case-by-case basis as part of the individual assessment of a national court, and that that assessment does not require the application of any objective criterion, in particular that it does not require a finding that the offender possesses drugs for the purpose of performing acts covered by Article 4(2)(a) of that framework decision, that is to say production, offering, offering for sale, distribution, brokerage, or delivery on any terms whatsoever?
In so far as the Polish Law on combating drug addiction contains no precise definition of ‘a significant quantity of drugs’ and leaves the interpretation thereof to the bench adjudicating in a specific case in the exercise of its ‘judicial discretion’, are the judicial remedies necessary to ensure the effectiveness and efficiency of the rules of EU law contained in Framework Decision 2004/757/JHA, and in particular Article 4(2)(a) of that framework decision, read in conjunction with Article 2(1)(c) thereof, sufficient to afford Polish citizens effective protection resulting from the rules of EU law laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking?
Is the rule of national law contained in Article 62(2) of the Law on combating drug addiction compatible with EU law, and in particular with the rule contained in Article 4(2)(a) of Framework Decision 2004/757/JHA, read in conjunction with Article 2(1)(c) thereof, and, if so, is the interpretation which the national Polish courts place on the expression ‘a significant quantity of psychotropic substances and narcotic drugs’ contrary to the rule of EU law pursuant to which a person who has committed the offence of possessing large quantities of drugs to perform activities covered by Article 2(1)(c) of Framework Decision 2004/757/JHA is to be subject to stricter criminal liability?
Is Article 62(2) of the Law on combating drug addiction, which lays down stricter criminal liability for the offence of possessing a significant quantity of psychotropic substances and narcotic drugs, as interpreted by the Polish national courts, contrary to the principles of equality and non-discrimination (Article 14 of the European Convention on Human Rights and Articles 20 and 21 of the Charter of Fundamental Rights [of the European Union], read in conjunction with Article 6(1) TEU)?
Hearing date at CJEU: 11/01/2019
Questions referred by the Belgium courts:
Questions referred:
Does Article 2(2) EAWFD, 1 as transposed into Belgian law by the Wet EAB, permit, for the purposes of the executing Member State’s assessment of the minimum maximum three year threshold imposed therein, recourse to be had to the criminal legislation that was applicable in the issuing Member State at the point in time at which the European arrest warrant was issued?
Does Article 2(2) EAWFD, as transposed into Belgian law by the Wet EAB, permit, for the purposes of the executing Member State’s assessment of the minimum maximum three year threshold imposed therein, recourse to be had to criminal legislation, applicable at the point in time of the issue of the European arrest warrant, allowing for a more severe penalty, as compared to the criminal legislation that was applicable in the issuing Member State at the point in time the offences were committed?
Hearing date at CJEU: 17/09/2019
Questions referred by the Netherlands courts:
Questions referred:
A. Must Article 14(2)(a) of Regulation (EEC) No 1408/71 1 be interpreted as meaning that, in circumstances such as those of the cases in the main proceedings, an international truck driver in paid employment is to be regarded as being a member of the driving staff of:
(a) the transport company which has recruited the person concerned, to which the person concerned is de facto fully available for an indefinite period, which exercises effective control over the person concerned and which actually bears the wage costs; or
(b) the company which has formally concluded an employment contract with the truck driver and which, by agreement with the transport company referred to under (a), paid the worker a salary and paid contributions in respect thereof in the Member State where that company has its registered office and not in the Member State where the transport company referred to in (a) has its registered office;
(c) both the company under (a) and the company under (b)?
B. Must Article 13(1)(b) of Regulation (EC) No 883/2004 2 be interpreted as meaning that, in circumstances such as those of the cases in the main proceedings, the employer of an international truck driver in paid employment is considered to be:
(a) the transport company which has recruited the person concerned, to which the person concerned is de facto fully available for an indefinite period, which exercises effective control over the person concerned and which actually bears the wage costs; or
(b) the company which has formally concluded an employment contract with the truck driver and which, by agreement with the transport company referred to under (a), paid the worker a salary and paid contributions in respect thereof in the Member State where that company has its registered office and not in the Member State where the transport company referred to in (a) has its registered office;
(c) both the company under (a) and the company under (b)?
In the event that, in circumstances such as those of the cases in the main proceedings, the employer is regarded as being the undertaking referred to in Question 1A(b) and in Question 1B(b):
Do the specific conditions under which employers, such as temporary employment agencies and other intermediaries, can invoke the exceptions to the country-of-employment principle set out in Article 14(1)(a) of Regulation (EEC) No 1408/71 and in Article 12 of Regulation (EC) No 883/2004 also apply by analogy, wholly or in part, to the cases in the main proceedings for the purposes of Article 14(2)(a) of Regulation (EEC) No 1408/71 and of Article 13(1)(b) of Regulation (EC) No 883/2004?
In the event that, in circumstances such as those of the cases in the main proceedings, the employer is regarded as being the company referred to in Question 1A(b) and in Question 1B(b), and Question 2 is answered in the negative:
Do the facts and circumstances set out in this request constitute a situation that is to be interpreted as an abuse of EU law and/or an abuse of EFTA law? If so, what is the consequence thereof?
Hearing date at CJEU: 18/09/2019
Questions referred by the Spanish courts:
Question referred:
Do Articles 8, 10 and 157 of the Treaty on the Functioning of the European Union, Article 3 of the Treaty on European Union, Article 23 and Article 33(2) of the Charter of Fundamental Rights, and Article 1 and Article 14(1) of Directive 2006/54.
Hearing date at CJEU: 19/09/2019
Questions referred by the French courts:
Form of order sought:
The applicant claims that the Court should:
annul the contested decisions;
order the payment of a surviving spouse’s pension to [WI];
order the European Commission to pay the costs
Pleas in law and main arguments
In support of his action challenging the decision of the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) dated 16 August 2017 refusing to grant the applicant a survivor’s pension, and the confirmatory decision, the applicant relies on two pleas in law.
1. First plea in law, alleging a manifest error in the assessment of the term ‘surviving spouse’ and infringement of Article 1d(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and Article 17 of Annex VIII thereto, in so far as the Commission based its reasoning on a restrictive and erroneous interpretation of the term ‘surviving spouse’ provided for by the Staff Regulations for the purposes of rejecting the applicant’s request for recognition of his status as a surviving spouse.
2. Second plea in law, alleging infringement of the principle of sound administration and of the duty to have regard for the welfare of officials in so far as, according to the applicant, the Commission should have taken into account the exceptional circumstances of the case in order to interpret Article 17 of Annex VIII to the Staff Regulations as meaning that the applicant may be entitled as of right to a pension by way of his status as a surviving spouse.
Hearing date at CJEU: 24/09/2019
Questions referred by the Spanish courts:
Questions referred:
Must Article 5 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003.
Must Article 7 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 under which annual leave is permitted to overlap with paid leave of absence intended to meet needs other than rest, relaxation and leisure?
Hearing date at CJEU: 19/06/2019
Questions referred by the Austrian courts:
Questions referred:
Where a cup of hot coffee, which is located on the shelf of the seat in front of a person in an aircraft in flight, for unknown reasons slides and tips over, causing a passenger to suffer scalding, does this constitute an ‘accident’ triggering a carrier’s liability within the meaning of Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed on 9 December 1999 by the European Community on the basis of Article 300(2) EC and approved on behalf of the European Community by Council Decision 2001/539/EC
Hearing date at CJEU: 08/10/2019
Questions referred by the German courts:
Questions referred:
Is the prohibition of discrimination under Article 18(1) TFEU directed not only at the EU Member States and the Union institutions, but also at private parties (direct third-party effect of Article 18(1) TFEU)?
If the first question should be answered in the negative and Article 18(1) TFEU is not applicable to relations between private parties: Is Article 18(1) TFEU to be interpreted as meaning that this provision precludes restricting cover to cases of damage occurring in metropolitan France and the French overseas territories because the competent French authority, the Bureau central de tarification (central pricing office), did not object to the corresponding clause, even though that clause is contrary to Article 18(1) TFEU because it involves indirect discrimination on the basis of nationality?
If the first question should be answered in the affirmative: Under what conditions can indirect discrimination be justified in cases of third-party effect? In particular: Can territorial restriction of insurance cover to cases of damage occurring within a certain EU Member State be justified with the argument of restriction of the liability obligation of the insurance company and the premium level if the relevant insurance policies at the same time provide that, in the event of serial damages, the cover per case of damage and the cover per insurance year are limited in terms of amount?
If the first question is to be answered in the affirmative: Is Article 18(1) TFEU to be interpreted as meaning that if, contrary to Article 18(1) TFEU, the insurer has only settled claims in cases of damage occurring in metropolitan France and the French overseas territories, it is prohibited from objecting that payment could not take place because the maximum cover amount was already reached, if the case of damage occurred outside of those territories?
Hearing date at CJEU: 10/10/2019
Questions referred by the German courts:
Form of order sought:
Find that the Kingdom of Belgium has failed to fulfil its obligations under Article 25 of Directive 2006/123/EC
Order the Kingdom of Belgium to pay the costs.
Pleas in law and main arguments
By (i) prohibiting the joint exercise of work as accountants, on the one hand, and as brokers, insurance agents, estate agents or all banking and financial services work, on the other, and by (ii) permitting the Chambers of the Institut Professionnel des Comptables et Fiscalistes Agréés (Institute of Accounting professionals and Tax Experts; IPCF) to prohibit the joint exercise of work as accountants, on the one hand, with any craft or commercial agricultural activity, on the other, the Kingdom of Belgium has failed to fulfil its obligations under Article 25 of Directive 2006/123/EC and Article 49 TFEU
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