A selection of important Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECHR) cases decided in November and December 2020.

Case law digest November 2020

Court: Court of Justice of the European Union

Case: C-61/19 Orange Romania

Date: Wednesday 11th November

Facts: This case concerned the interpretation of Article 2(h) of Directive 95/46/EC and Article 4(11) of Regulation (EU) 2016/679. The request for a preliminary ruling between Orange Romania SA and the ANSPDCP (the Romanian national authority for the supervision of personal data processing) related to an action for annulment of a fine imposed by ANSPDCP on Orange for collecting and storing copies of customers’ identity documents without their valid consent and an order to destroy such copies.

Held: Article 2(h) and Article 7(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 and Article 4(11) and Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, must be interpreted as though it is for the data controller to show that the data subject has, by active behaviour, given consent to the processing of their personal data and that they have obtained information, before such consent was given, relating to all circumstances surrounding that processing to allow the data subject to easily understand the consequences of that consent i.e. it is given with full knowledge of the facts. A contract relating to the provision of telecoms services containing a clause stating that the data subject has been informed and consented to the collection and storage of copies of their identity documents for identification purposes does not demonstrate such consent in the following circumstances:

  • The box referring to the consent clause was already ticked by the data controller prior to the contract being signed;
  • The terms of the contract are capable of misleading the data subject as to the possibility of concluding the contract in question even if they refuse to consent to the processing of their data; or
  • The freedom to object to the collection and storage of their personal data is “unduly affected” by the controller, by requiring the data subject to complete an additional form setting out the refusal of consent.

Judgment

 

Court: European Court of Human Rights

Case: Klaus Müller v. Germany (no. 24173/18)

Date: Thursday 19th November

Facts: This case concerned lawyer-client privilege. The applicant, Klaus Müller, is a German national and lives in Germany. Between 1996 and 2014 the applicant (a lawyer) and his firm gave legal advice to four companies that went into insolvency in 2014. In 2017 criminal proceedings were opened against the former managing directors of those companies. The applicant was summoned as a witness. Despite the managing directors at the time of the trial waiving lawyer-client privilege, the applicant refused to testify, arguing that he was still bound by professional secrecy unless released by the former managing directors too. The applicant later paid 600 euros in fines and testified in court on pain of administrative detention. Relying on Article 8 (right to respect for private life) of the Convention, the applicant complained that forcing him to testify had breached his legal professional privilege.

Held: The Court observed that the domestic courts considered that the clients of the applicant’s law firm had only been the four companies that had concluded a legal consultancy contract with the law firm and not the individual managing directors representing the companies at the time. The Court considered that the reasons adduced by the domestic courts to justify interference were both “relevant and sufficient”, as required for the it to have been “necessary in a democratic society” in accordance with Article 8 § 2.

Judgment

Press release

 

Court: Court of Justice of the European Union

Case: C-59/19 Wikingerhof

Date: Tuesday 24th November

Facts: Wikingerhof GmbH & Co. KG, a company governed by German law operating a hotel in Germany, concluded, in 2009, a contract with Booking.com BV, a company governed by Netherlands law which has its seat in the Netherlands and operates an accommodation booking platform. A term in the contract stated that the general terms and conditions available on Booking.com’s website form an integral part of the contract. On 25 June 2015, Wikingerhof objected in writing to the inclusion of Booking.com’s new terms and conditions in the contract at issue. Wikingerhof’s stated that it had no choice but to accept the new terms due to Booking.com’s strong market position even though Wikingerhof claimed certain of their practices were unfair and contrary to competition law.

Wikingerhof brought a claim before the Regional Court in Kiel, Germany which concluded that it lacked territorial and international jurisdiction. On appeal, this finding was confirmed by the Higher Regional Court on the basis that the German courts:

  • had no general jurisdiction under Brussels Ia (Regulation No 1215/2012) as Booking.com’s seat was in the Netherlands;
  • no special jurisdiction of the court for the place of performance of the contractual obligation under point 1(a) of Article 7 of Brussels Ia; and
  • were not the place where the harmful event occurred in matters relating to tort, delict or quasi-delict under point 2 of Article 7 of Brussels Ia.

Wikingerhof appealed on a point of law, claiming that the Higher Regional Court had made an error in deciding it did not have jurisdiction in matters relating to delict, quasi-delict and tort. The Federal Court of Justice in Germany referred this question to the Court of Justice for a preliminary ruling.

Held: In principle, a hotel using Booking.com may institute proceedings, to bring an end to a possible abuse of dominant position, against that platform before a court of the Member State in which the hotel is established. Despite the practices subject of complaint being implemented within a contractual context, the rule of special jurisdiction in matters relating to delict, quasi-delict or tort set out under the Brussels Ia Regulation is applicable to them.

Judgment

Press release

 

Court: Court of Justice of the European Union

Case: C-510/19 Openbaar Ministerie and YU and ZV v AZ

Date: Tuesday 24th November

Facts: This case concerns the interpretation of Articles 6(2), 14, 19 and 27 of Council Framework Decision 2002/584/JHA relating to the European arrest warrant and surrender procedures between Member States. The request for a preliminary ruling was made in the course of criminal proceedings instituted in Belgium against a Belgian national (AZ) who was accused of forging documents, using said documents and fraud. AZ was surrendered by the Netherlands authorities pursuant to European arrest warrants.

Held: The Court ruled that the concept of ‘executing judicial authority’ constitutes an autonomous concept of EU law which must be interpreted as covering the authorities of a Member State which without necessarily being judges or court, participate in the administration of criminal justice in that Member State, acting independently in the execution of a European arrest warrant. Articles 6(2), 27(3) and 27(4) of Framework Decision 2002/584 (amended by Framework Decision 2009/299) must be interpreted as meaning that public prosecutors of Member States do not constitute an ‘executing judicial authority’.

Judgment

Press release

 

Case law digest December 2020

Note: The judicial vacation for Christmas will commence on 21st December 2020 and resume session on 10th January 2021.

 

Court: Court of Justice of the European Union

Case: C-739/19 An Bord Pleanála

Date: Wednesday 2nd December

Facts: The case concerns a reference for preliminary ruling regarding the interpretation of the Lawyers’ Services Directive.

The case concerns a dispute which between V.K. (‘applicant’) and An Bord Pleanála (the ‘defendant’) and the General Council of the Bar of Ireland, The Law Society of Ireland and the Attorney General as notified parties (the ‘notified parties’) concerning the imposition on the applicant’s lawyer of an obligation to act in concert with a lawyer registered with the Irish Bar for the purpose of representing the applicant before the referring court.

The judgment of Klahn v. An Bord Pleanala, Case C-167/17, ECLI:EU:C:2018:833 gives context to the issues in these proceedings. In that judgment, the Court of Justice determined the proper interpretation and application of EU law in respect of the cost’s regime in certain environmental cases. The matter was remitted to the Supreme Court for the purposes of finalising the appeal brought by Mr. K. in accordance with the determination by the Court of Justice. A hearing before final judgment was required and Mr. K. wished to be represented by Ms. O. Certain issues arose as to whether Ms. O. was entitled to exercise a right of audience before the Irish courts, which gave rise to the question of Ms. O.’s right of audience. Issues as to the proper transposition and/or interpretation of the relevant Irish implementing measures of the Lawyers’ Services Directive had come into focus.

The question concerning the Supreme Court was whether Ms .O. had established that she was entitled in general terms to exercise the rights conferred by the Lawyers’ Services Directive at all. In a judgment on 31 July 2019, those issues were determined in favour of Ms .O. and it was established that she was entitled to exercise the rights conferred on visiting lawyer under the Lawyers’ Services Directive and its Irish implementing measures. The remaining issue was the question of whether, in exercising those rights, she could be required to practice “in conjunction with” and Irish-qualified lawyer.

The Supreme Court determined that it was necessary to refer a question to the Court of Justice as to the proper interpretation of the relevant aspects of the Lawyers’ Services Directive.

Opinion

 

Court: Court of Justice of the European Union

Case: C-584/19 Staatsanwaltschaft Wien/A. and Others

Date: Wednesday 8th December

Facts: The Hamburg Public Prosecutor’s Office initiated a criminal investigation for fraud against A and several others, all of whom were suspected of having falsified bank transfer orders using unlawfully obtained data to enable the probate transfer of around €9800 to a bank account opened in A’s name with an Austrian bank. The Hamburg Public Prosecutor’s Office issued and forwarded a European Investigation Order to the Austrian Public Prosecutor’s Office, requesting copies of the bank statements in question for the relevant period. The Austrian Public Prosecutor’s Office, in accordance with the Austrian Code of Criminal Procedure, requested court authorisation for the investigative measure.

Under German law, the Hamburg Public Prosecutor’s Office may receive instructions from the German Senator for Justice and so the issue was whether the European Investigation Order should be executed by the Austrian authorities. The issue stemmed, more specifically, from the Court’s recent case-law relating to the concept of ‘issuing judicial authority’ of a European Arrest Warrant. The question for the Court of Justice was whether the public prosecutor’s office of a Member State may be regarded as a ‘judicial authority’ having competence to issue a European investigation order, although it is exposed to a risk of being subject to individual instructions or orders from the executive when adopting such an order.

Held: The Court of Justice held that unlike a European arrest warrant, a European investigation order may be adopted by the public prosecutor’s office of a Member State exposed to the risk of being subject to individual instructions from the executive. The fundamental rights of the person who is the subject of the European investigation order are sufficiently protected both at the stage of issuing that order and at the stage of its execution in another Member State.

Judgment

Press release

 

Court: Court of Justice of the European Union

Case: C-132/19 P Groupe Canal + v Commission

Date: Wednesday 9th December

Facts: The European Commission opened an investigation into possible restrictions affecting the provision of pay-TV services under licensing agreements on audio-visual content between Paramount, Sky and Groupe Canal + SA, to assess the compatibility of those restrictions with Article 101 FEU and Article 53 of the Agreement of the European Economic Area (EEA).

Within the agreements, there were two related clauses which the Commission regarded led to absolute territorial exclusivity and could constitute a restriction of competition ‘as their object’ within the meaning of Article 101 TFEU and Article 53 EEA Agreement, in so far that they frustrated the Treaty’s objective of establishing a single market. Paramount offered commitments to address these concerns which the Commission made binding. Due to these commitments being agreed between Paramount and the Commission, Groupe Canal + brought an action in the General Court of the EU seeking annulment of this decision as they argued the commitments cannot be relied upon against Groupe Canal +. The General Court of the EU dismissed the action on 12 December 2018.

Held: The Court of Justice found that the General Court erred in law in its assessment of the proportionality of the adverse effects on the interests of third parties and therefore annulled a Commission decision making binding the commitments offered by a company to preserve competition on the markets.

Judgment

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