Joined cases C-175/18 P and C- 178/18 P
Date of Judgement: 22nd January 2020
PTC Therapeutics International v EMA (C-175/18 P) and MSD Animal Health Innovation and Intervet International v EMA (C-178/18 P)
In 2015, the appellants in both cases were informed by the EMA that, on the basis Regulation (EC) No 1049/2001, third parties were seeking access to information and documents, namely toxicology reports and a clinical study which had been submitted in the context of their applications for marketing authorisation. In both instances, the appellants were of the view that the reports should be protected by a presumption of confidentiality and therefore should not be disclosed, or alternatively, many parts of the reports should be redacted. This view was rejected by the EMA and access was granted to the reports at issue subject to some redactions, albeit fewer redactions than the appellants sought. The EMA considered the disclosure of the reports is in line with their transparency policy and their obligations under Regulation No 1049/2001.
The appellants then brought separate actions against EMA in December 2015 requesting the General Court annul the decision of the EMA granting such access. In both cases however, the General Court dismissed the appellants’ application for annulment. The decision of the General Court was subsequently appealed.
The first ground that the appellants put forward was that the General Court erred in law in finding that the reports at issue were not protected by a general presumption of confidentiality.
On this ground the Court of Justice found that whilst the general presumption of confidentiality is an option for an EU institution, body, office or agency there was no obligation on the EMA to apply such a presumption to the reports in question and EMA had also examined these reports which ultimately lead to the redaction of certain information.
The second argument of the appellant was that the General Court failed apply the protection of commercial interests conferred by the first indent of Article 4(2) of Regulation No 1049/2001. The Court of Justice outlined that as the appellants sought to rely on an exception in Article 4 then they were required to provide explanations as to why access to the reports in questions could actually undermine their commercial interests. A broad claim relating to a general risk of misuse cannot lead to the information being regarded as falling within the exception relating to the protection of commercial interest. Furthermore, the appellant in Case C-175/18 – P failed to provide any such explanations either to the EMA or to the General Court.
The judgment comes at a significant time when the transparency of the EU institutions or lack there of has come under particular scrutiny. It departs from the Opinion of Advocate General Hogan issued on 28th October 2019 who concluded that there should be a general presumption of confidentiality in favour of non-disclosure to third parties.
Date of Judgement: 22nd January 2020
AT v Pensionsversicherungsanstalt
The Austrian Supreme Court referred two questions to the European Court of Justice for preliminary ruling in relation to the entitlement of a person to an old age state pension under Article 17(1) of the Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
The questions referred were;
’1. Is Article 17(1)(a) of Directive [2004/38] to be interpreted as meaning that workers who, at the time when they stop working, have reached the age laid down by the law of the State of employment for entitlement to an old age pension must have been working in the State of employment for at least the preceding twelve months and must have resided in the State of employment continuously for at least three years in order to acquire the right of permanent residence before completion of a five-year residence period?
2. If Question 1 is answered in the negative: Do workers have the right of permanent residence pursuant to the first alternative in Article 17(1)(a) of [Directive 2004/38] if they take up employment in another Member State at a point in time at which it is foreseeable that they will be able to engage in their employment for only a relatively short period of time before they reach the statutory retirement age and, because of low income, will in any event be dependent on the host Member State’s social assistance after they stop working?’
The Court of Justice of European Union held that, in relation to the first question, any other interpretation of the Directive 2004/38 would be contrary to the objectives of the Directive and it ruled in the affirmative.
In relation to the second question the CJEU stated that given the answer to the first question there is no need to answer the second question.
The full judgement can be accessed here
Date of Judgement: 31st January 2020
Slovenia v Croatia
In an attempt to resolve the issue of the establishment of their borders Croatia and Slovenia, the two reached an arbitration agreement in November 2009. As per the terms of this agreement both Member States undertook to submit to the arbitral tribunal, whose award would be binding on them. In 2015, following unofficial communications between the arbitrator appointed but Slovenia and the State’s Agent before the tribunal, Croatia informed Slovenia, that it took the view that the latter was guilty of material breaches of the 2009 agreement. As such, Croatia considered that the tribunal could no longer make an independent and impartial decision and it terminated the agreement.
Nevertheless, the arbitration tribunal continued with the proceedings and in June 2017 ruled on the land and sea borders between Slovenia and Croatia. Croatia did not implement the award and in July 2018 Slovenia brought an action against Croatia on the basis of Article 259 TFEU for failure to fulfil obligations before the Court of Justice of the European Union. Croatia, in their defence argued the CJEU did not have jurisdiction on the dispute as the subject matter of the arbitration agreement fell outside the areas of EU competence.
The Court concluded that any action brought under Article 259 TFEU for failure to fulfil obligations can only be brought where the obligations relate to EU Law. Subsequently, The Grand Chamber of the Court declared that it lacks jurisdiction to rule on the action brought by Slovenia regarding the border dispute between Slovenia and Croatia.
Advocate General Opinions:
Case C – 623/17 and C – 511/18 C and C – 512/18 and C- 520/18
Date of Opinion: 15th January 2020
Case C-623/17 Privacy International, Joined Cases C-511/18 La Quadrature du Net and Others and C-512/18 French Data Network and Others, and Case C-520/18 Ordre des barreaux francophones et germanophone and Others
Advocate General Manuel Campos Sánchez-Bordona General finds that Member States are not allowed indiscriminately hold personal data obtained from internet and phone companies, even when there is a risk to National Security.
The Advocate General considered that Privacy and Electronic Communications Directive is applicable, in principle, when the providers of electronic communication services are obliged by law to retain the data of their subscribers and to allow the public authorities access to that data, irrespective of whether those obligations are imposed on national security grounds.
The issue at play was the extent of the application of the Directive to activities relating to national security and combating terrorism. Activities that are aimed at safeguarding national security and are carried out by the public authorities on their own account, without requiring the cooperation of private parties are excluded from the Directive. When cooperation of private companies are required then that brings those activities within the scope of the Directive.
He recommends limited and discriminate retention of data for a determinate period, and limited access to this data only where it is absolutely essential for the effective prevention and control of crime and safeguarding of national security. He also recommended the adoption of rules to avoid misuse of, and unlawful access to, that data.
The Advocate Generals Opinion is not legally binding however if it is followed by the Court of Justice of the European (CJEU) then the indiscriminate retention of personal data would be prohibited meaning several Member States including the UK would have to amend their domestic legislation
Date of Opinion: 14th January 2020
Commission v Hungary
In 2017 Hungary adopted a Law imposing an obligation on organisations who receive direct or indirect donations of more than 500,000 Hungarian forints (HUF) (approximately € 1,500) from abroad to register with the Hungarian authorities. The register which would be freely accessible to the public would include the name of the donors and the exact amount they have donated in support of the organisation. The obligation applied solely to organisations who received donations from abroad. The aim of the national law was to ensure transparency among civil organisations that receive donations from abroad.
In 2018 The Commission brought an application that the Court of Justice to declare that the law introduced in Hungary is discriminatory, unnecessary and without justification and that Hungary had failed to fulfil its obligations under Article 63 TFEU (free movement of capital) and Articles 7 (Resect for private and family life), 8 (Protection of personal data) and 12 (Freedom of assembly and of association) of the Charter of Fundamental Rights of the European Union.
In relation to Article 63 TFEU the Advocate General stated that transfer of a donation from abroad to a Hungarian civil organisation is movement of capital. He went on to say that the requirement of civil organisations to register as ‘organisation in receipt of support from abroad’ amounted to a restriction of the movement of capital.
Regarding Article 7 and Article 8 rights the Advocate General explained that the disclosure of donor’s name amounts to personal data and this link may help to ideologically profile the donor. This information is on a public register and interference with private life of donor and personal data.
The Advocate General stated that the law also infringes on Article 12 rights as donors may be deterred from making donations due to the publication of the details on a public register therefore leading to possible financial problems for certain organisations.
The Advocate General also stated the monetary threshold for the requirement to register is excessively low given the gravity of the interference with the rights protected by the charter
Advocate general proposes that the CJEU should declare legislation unduly restricts movement of capital as provisions amount to unjustified interference with fundamental rights of respect for private life, protection of personal data, freedom of association.
The full text of the opinion can be found here
Case C-688/18 of Spetsializirana prokuratura (Audience en l’absence de la personne poursuivie)
Member State: Bulgaria
Directive (EU) 2016/343 (recitals 35 and 44) in conjunction with Article 8(1) and (2) allows a defendant the right to be present at the trial.
If a criminal hearing were to take place in the defendants absence (who was previously informed by his lawyer the consequences of failure to attend the specific hearing and duly summoned), would their right under the Directive 2016/343 be infringed if:-
- The defendant was unable to attend the hearing due to a reason within his control (for example he decided not to participate in the specific hearing);
- The defendant was unable to appear at the hearing for a reason which was out with his control (for example illness), if he was later informed of the decision carried out in his absence, and having full knowledge and understanding of the situation, decided and declared that:
- The defendant does not wish for the decisions or acts to be repeated in his presence and does not question their legality by replying on his non-appearance
- In the circumstances that the court conducted an additional examination of the person specified by the defender, he wishes to participate and is given an opportunity to participate to an appropriate extent?