EW: The Data Retention and Investigatory Powers Act is inconsistent with the right to privacy and protection of personal data in the absence of a national access regime protecting those rights under the EU Charter of Fundamental Rights

The Divisional Court of the High Court has ruled that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

David Davis MP and Tom Watson MP, among others, challenged the validity of section 1  of the Act and the Data Retention Regulations 2014 as being contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, or, Article 8 of the European Convention on Human Rights.

Article 7 of the Charter protects the right to respect for private and family life. This right is also covered by Article 8 of the Convention. Article 8 of the Charter provides for the right to the protection of personal data.

The Act was a response to the Digital Rights Ireland judgment. The invalidation of the Data Retention Directive put the legal foundation for requiring retention of communications data in doubt. Some communications service providers expressed the view that there was no legal foundation to keep communications data and indicated that any data retained under the 2009 Regulations would be deleted.

The Court found that legislation providing a general data retention regime for communications data infringes Article 7 and 8 of the Charter, unless the legislation is accompanied by an access regime on a national level that provides adequate protection for the rights under the respective articles:

The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is that legislation establishing a general retention regime for communications data infringes on Article 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights.

The Court awarded a Declaration stating that section 1 of the Act is inconsistent with the Charter for two reasons. One, the Act does not lay down clear and precise rules providing for access to, and use of, communications data. Two, access to the data is not made dependent on a prior review by a court or an independent administrative body.

However the Court disapplied section 1 of the Act, suspending the Order until March 31st, 2016. The Order disapplying section 1 applies to the extent that it permits access to retained data in the two respects set out in the Declaration.

CJEU(J): The Outright Monetary Transaction programme does not exceed the powers of the European Central Bank in relation to monetary policy or breach the prohibition on monetary financing of EU Member States

The Court of Justice of the European Union has ruled that the Outright Monetary Transaction programme does not: (i) exceed the powers of the European Central Bank in relation to monetary policy; (ii) infringe the principle of proportionality, or; (iii) breach the prohibition of monetary financing of EU Member States. 

On September 6th, 2012, the European Central Bank issued a press release announcing that it had adopted certain decisions concerning the Outright Monetary Transaction programme. The Programme permits the European System of Central Banks to purchase government bonds of Member States on the secondary market subject to certain conditions: (i) the States concerned must participate in a financial assistance programme of the European Financial Stability Facility or the European Stability Mechanism; (ii) transactions would focus on the shorter part of the yield curve; (iii) quantitative limits would not be set in advance; (iv) the European Central Bank would receive the same treatment as a private creditor, and; (v) liquidity would be fully sterilised.

The case originated in Germany, where a number of concerned parties brought a case before the Federal Constitutional Court against the Federal Government. The parties argued that the Programme: (i) is not covered by the mandate of the European Central Bank and breaches the prohibition on monetary financing of Member States, and; (ii) that those decisions breach the principle of democracy, which is enshrined in German Basic Law.

For the first time in its history, the Federal Constitutional Court requested a preliminary ruling from the Court of Justice.   

In view of the Programme's objectives and the instruments provided for achieving those objectives, the Court found the Programme falls within the monetary policy.

First, the Programme contributes to achieving the objectives of the monetary policy by seeking to preserve the singleness of that policy.

Second, the Programme is likely to preserve the singleness of the monetary policy and contribute to maintaining price stability - its primary objective.

The Court found that the ability of the ESCB to influence price developments through its monetary policy decisions largely depends on the transmission of the impulses. The impulses are sent out by the ECB across the money market to various sectors of the economy. Thus, if the monetary policy transmission mechanism is disrupted, it would likely render the decision of the ESCB ineffective in a part of the Euro area. This would undermine the effectiveness of the measures adopted by the ESCB, affecting its ability to guarantee price stability.

The Court concluded that a monetary policy cannot be treated as equivalent to an economic policy simply because the monetary policy is likely to have indirect effects on the stability of the Euro area. The fact that Programme is made conditional upon full compliance with the European Financial Stability Facility or the European Stability Mechanism does not change that conclusion.

The Programme, the Court held, does not infringe on the principle of proportionality for three reasons.

The first reason is, considering the economic conditions described by the ECB in the press release in September 2012, the ESCB could take the view that the Programme was appropriate for the purpose of maintaining price stability.

The second reason is, in view of the conditions that would apply in the event of the Programme being implemented, it does not manifestly go beyond what is necessary to achieve those objectives.

The third reason is because the ESCB considered the various interests in question in order to prevent disadvantages from arising. Those disadvantages are manifestly disproportionate to the Programme's objectives.

The Court held that the prohibition on monetary financing does not prevent the ESCB from adopting or implementing the Programme under conditions that do not result in intervention by the ESCB as having the same effect as that of a direct purchase of bonds from public authorities and bodies member states.

Moreover, the prohibition does not preclude the possibility of the ESCB purchasing bonds from creditors previously issued by that state.

However the Court warned that in purchasing government bonds on the secondary market, "sufficient safeguards" must be put in place to ensure that the Programme does not "fall foul" of the prohibition.

Three safeguards were put forward by the ECB to the Court. The first safeguard, contained in the draft decision and draft guideline, indicates that the Governing Council will be responsible for deciding on: (i) the scope; (ii) the start; (iii) the continuation, and; (iv) the suspension of the intervention envisaged by the Programme on the secondary market. The second safeguard, the ESCB intends to ensure the observation of a minimum period between the issue of security on the primary market and its purchase on the secondary market. While the third safeguard, the ESCB intends to refrain from making prior announcement about either its decision to: (i) carry out such purchases, or; (ii) the volume of purchases envisaged.

CJEU(O): Non-consultant hospital doctors are entitled to a minimum rest period

The Court of Justice of the European Union has found Ireland is in breach of European Union Directive 2003/88/EC (Organisation of Working Time Directive) concerning the working hours of non-consultant hospital doctors (NCHDs).

The European Commission took the action against Ireland for failing to fulfill its obligations under Article 3, Article 5, Article 6, Article 17(2) and Article 17(5) of the Directive.

In January 2012 the Irish Medical Organisation (IMO) and the Health Service Executive (HSE) signed a collective Agreement concerning the working time of non-consultant hospital doctors. The agreement sets out a standard employment contract for non-consultant hospital doctors.

Under the current conditions, the work of non-consultant hospital doctors is split between time allotted for training and time spent treating patients. However, Clause 3(a) of the Agreement stipulates that:

[...] time spent training as scheduled in the duty roster and at a time when the NCHD is not on call is not to be counted as working time.

Advocate General Bot found non-consultant hospital doctors are entitled to a minimum rest period, and the decision not to include the training time in the calculation of the working time for non-consultant hospital doctors "encroaches on the minimum rest period". Moreover, Advocate General Bot found the time spent training and the time spent treating patients are intrinsically linked.

Ireland incorporated the Directive into national law through the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, as amended by the 2010 Regulations.

Although the opinion of Advocate General Bot is not binding, the Court of Justice usually upholds the opinion handed down. The Court of Justice is expected to provide a binding judgment later this year.

CJEU(J): An agreement on European Union accession to the European Convention on Human Rights must be compatible with EU law

The Court of Justice of the European Union has ruled that the Draft Agreement for the the accession of the European Union (EU) to the European Convention on Human Rights is incompatible with European Union law.

The request for an Opinion, submitted by the European Commission, asked whether:

[...] the [D]raft [A]greement providing for the accession of the European Union to the Convention for Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950 ("ECHR"),] compatible with the Treaties?

In March 2010 the European Commission recommended to the Council of Europe, authorising the opening of negotiations on the Draft Agreement. The Council adopted this recommendation in June 2010 and designated the Commission as Negotiator.

The principles that must be covered by the internal rules of the EU during negotiations in April 2012 were set out in a Supplementary Annex to the Council's Mandate according to the Annex, the internal rules cover:

[...] [one,] the representation of the EU before the E[uropean] C[our]t of H[uman] R[ights; two,] the triggering of the co-respondent mechanism before the [Court] and the coordination rules for the purpose of the conduct of the procedure before the [Court] by the respondent and the co-respondent[; three,] the selection of three candidates for the office of Judge in the [Court; four,] the prior involvement of the Court of Justice, and[; five,] the circumstances in which the EU will agree a position and those in which the Member States will remain free to speak and act as they choose, both in the [Court] and in the Committee of Ministers.  

In April 2013 the Draft Agreement was agreed upon by negotiators.

The Court ruled that the Draft Agreement was incompatible on five grounds.

First, the failure of the Draft Agreement to take account of specific characteristics of EU law is threefold. One, the Draft Agreement did not limit the possibility of EU member states having higher human rights standards than EU law. This, despite the European Court of Justice judgment that member states could not have higher standards than the Charter of Fundamental Rights of the European Union where the law has been harmonised by EU. This rule also applies to the European Convention on Human Rights. But the Draft Agreement failed to take account of this. Two, the Draft Agreement did not provide for the application of the 'mutual trust' rule in Justice and Home Affairs matters. Three, Draft Agreement also failed to rule out the possibility that when applying Protocol 16 to the European Convention on Human Rights, the national courts would ask the European Court of Human Rights to rule on EU law matters before asking the Court of Justice.

Second, the Draft Agreement failed to rule out the possible use of the European Court of Human Rights to settle disputes. This violates Article 344 of the Treaty on the Functioning of the European Union (TFEU), which gives the Court of Justice monopoly on settling inter-state disputes on EU law between EU member states.

Third, the co-respondent mechanism where both an EU member state and the EU could be party to a case at the European Court of Human Rights is incompatible with EU  law on three grounds. One, it would give the European Court of Human Rights the power to interpret EU  law when assessing the admissibility of requests to apply this process. Two, a judgment by the European Court of Human Rights on the joint responsibility of the EU and member states could impinge on member states reservations to the European Convention on Human Rights. Three, the EU should not have the power to allocate responsibility for any breach of the European Convention on Human Rights between the EU and member states, since only the Court of Justice can rule on EU law.

Fourth, the rule in the Draft Agreement on prior involvement of the Court of Justice before the European Court of Human Rights ruled on EU law were incompatible with EU law on two grounds. One, the rules did not reserve the power on whether the Court of Justice has already rule on a matter of the EU. Two, the rules did not permit the Court of Justice to rule on the definitive interpretation of EU law.

Fifth, the rules on the Common Foreign and Security Policy were incompatible with EU law because a non-EU court cannot be given the power of judicial review over EU "acts, actions or omissions". This, despite the Court of Justice having no jurisdiction itself on most Common Foreign and Security Policy matters.

The consequences of the Court of Justice opinion means that EU accession to the European Convention on Human Rights cannot go ahead without amending the draft Agreement. Moreover, any amendments to the draft Agreement will have to be negotiated by all 47 signatories to the Convention.

In 1996, the Court ruled that the European Community (EC) could not accede to the European Convention on Human Rights. The Court ruled that only an amendment to the Treaty could overturn the decision. In 2009, the Lisbon Treaty amended existing treaties, inserting Article 6(2):

The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

This amendment now requires the European Union to accede to the European Convention on Human Rights.

CJEU(J): Obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive

The Court of Justice of the European Union has ruled that obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive.

Karsten Kaltoft had been working as a child-minder for the Municipality of Billund in Denmark since November 1996 until Mr. Kaltoft was dismissed in November 2010. However, Mr. Kaltoft was told that the reason for his dismissal was the decline in the number of children, without providing the reasons for selecting him.

In periods throughout his employment with the Municipality, Mr. Kaltoft, with financial assistance attempted to lose weight by attending fitness classes. While the Municipality denies that the issue of obesity provided the basis for the dismissal, Mr. Kaltoft maintained his dismissal is rooted in discrimination due to his weight.

Mr. Kaltoft took a case for damages for discrimination to the Retten i Kolding (District Court of Kolding) in Denmark. The District Court asked the Court of Justice to clarify if EU law includes a self-standing prohibition on discrimination on the grounds of obesity. Alternatively, the District Court asked if obesity can be classified as a disability within the meaning of Equal Treatment in Employment Directive.

In July, Advocate General Niilo Jääskinen observed that nothing in the  Charter of Fundamental Rights of the European Union explicitly refers to obesity as a prohibited ground of discrimination. Therefore, the Advocate General concluded, any prohibition could only exist as part of a general prohibition in the labour market. Moreover, the Advocate General held that the Charter is only binding when a member state implements EU law. The Advocate General also emphasised that EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination with definitive subject areas. Therefore, there is no general, stand-alone prohibition on discrimination on the grounds of obesity.

The Court of Justice found that if obesity hinders:

[...] the full and effective participation of that person in professional life on an equal basis with other workers ...

then obesity can fall within the concept of "disability". 

CJEU(J): The processing of personal data on household CCTV may breach EU Data Protection Directive

The Court of Justice of the European Union has ruled that the processing of personal data on a household CCTV may breach the EU Data Protection Directive if the CCTV also monitors public space.

The Court case relates to František Ryneš, a Czech national, who installed CCTV after being subject to attacks by unknown individuals. The CCTV filmed public space and the entrance to the house opposite.

In October 2007 a window in the family home was broken by a shot from a catapult. The CCTV, handed over to the police, made it possible to identify and prosecute two suspects.

However, one of the accused challenged the legality of Mr. Ryneš recording and holding of the images. The Office for the Protection of Personal Data in the Czech Republic found Mr. Ryneš breached data protection laws despite using the CCTV to identify the perpetrators of crime.

Mr. Ryneš appealed the ruling, later dismissed by the Mĕstský soud v Praze (Prague City Court) in April 2012. Mr. Ryneš appealed on a point of law to the Nejvyšši správni soud (Supreme Administrative Court). The Supreme Administrative Court placed a stay on proceedings, asking the Court of Justice if:

[...] on a proper construction of the second indent of Article 3(2) of Directive 95/46, the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, amounts to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.

The Court held that Mr. Ryneš did not breach data protection laws because the CCTV served to identify and prosecute a criminal. However, the Court did suggest CCTV that also monitors public space, even partially, where it is directed outwards from the private setting would breach the Data Protection Directive.

CJEU(J): Legislation prohibiting 'hidden fees' contravenes right of airlines to freely set fares under Regulation (EC) No 1008/2008

The Court of Justice of the European Union has ruled that budget airlines can continue to charge for separate baggage and seating, a business model that has helped airlines such as Ryanair and easyJet to flourish.

Consumers and rival airlines have criticised the use of additional charges for check-in-baggage, overweight bags, allocated seating and priority boarding as hidden fees.

Despite the criticism, the Court ruled that charging fees for check-in-baggage were justified. The ruling overturns a Spanish ruling by the Court for Contentious Administrative Proceedings that had upheld a complaint against Vueling, a budget airline that is part of British Airways and IAG.

The Court ruled that the Spanish legislation prohibiting the application of a fee for checked-in-baggage infringes European Union law.

The processing and storing of checked-in baggage is likely to lead to additional costs for the airline, which is not the case for carried hand-baggage. Furthermore, the extent of the liability of the carrier for damage is greater when baggage is checked in than when it is not.

The case had been taken by a Spanish national, Ms. Arias Villegas, who was charged €40 for two pieces of checked-in-baggage travelling between La Coruna and Amsterdam in 2010.

EW: Technical defects not to be considered an extraordinary circumstance under Regulation No. 261/2004

The Court of Appeal (Civil Division) has dismissed an appeal by Jet2.com, an airline, who argued a flight delay because of technical defect amounted to an "extraordinary circumstance".

Rather, the Court upheld the judgment of Judge Platts at Manchester County Court that Ronald Huzar, a passenger, was entitled to compensation under European Union Regulation No. 261/2004 after suffering a 27 hour delay on a flight from Malaga, Spain, to Manchester, in October 2011.

The Court of Appeal judgment means that technical defects are not to be considered an "extraordinary circumstance" under the EU Regulation. Moreover, the judgment emphasises the requirement for airlines to pay compensation for delays of more than three hours.

The Court of Appeal judgment now brings the United Kingdom into line with other European countries, establishing much needed case precedent.

In a case where an airline claims "extraordinary circumstance", the onus of proof rests on the carrier. However the Court found the defence did not apply in the case of Mr. Huzar.

The judgment has retrospective application meaning anyone who has suffered a long delay on a qualifying flight since the summer of 2008 is entitled to claim.

CJEU(J): A search engine as a data controller is responsible for content links - even if the material was previously published legally

The Court of Justice of the European Union has ruled that Google must delete data that is "inadequate, irrelevant or no longer relevant" from search results when a member of the public requests.

The case was taken by Spanish national, Mario Costeja González, when he failed in his attempts to have an auction notice of his repossessed home deleted. The notice dating back to 1998 was published on the website of Catalonia, a mass circulation newspaper.

Mr. González claimed the matter of his house being auction to recover social security debts had been resolved and, therefore, should be forgotten.

The Court of Justice held that under EU law on data protection, Google must erase links to two webpages on the website of La Vanguardia.

The Court made it clear in ruling that EU law had already established "a right to be forgotten". Moreover, the Court found that the inclusion of links a member of the public wants removed:

on the grounds that he wishes the information appearing on those pages relating to him personally to be 'forgotten' after a certain time ...

was incompatible with EU law on data protection.

The Court found the data that had to be erased could:

appear to be inadequate, irrelevant or no longer relevant, or excessive ... in light of the time that has elapsed.

The Court added:

that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive ...

Moreover, the Court emphasised the need to strike a balance between the right to privacy and freedom of expression. An exception to the right to privacy was the role played by an individual in public life, the Court ruled.

In effect, the judgment means that search engines as a data controller has a responsibility for the content that it links to. As a result, search engines may be required to remove links even if the material was previously published legally.

CJEU(J): EU Data Retention Directive breaches right to respect for private life and fundamental right to the protection of personal data

The Court of Justice of the European Union has ruled the EU Data Retention Directive (2006/24/EC) invalid. The Court deemed the Directive to be an interference with the fundamental rights of practically the entire European population.

Challenged by Digital Rights Ireland, the Directive required internet service providers and telecommunications companies to record details about one's emails, internet use, location and text messages. The information that was gathered stops short of recording the content of the e-mail or text message.

For every citizen this database of information is kept for up to two years. This database can be accessed by gardaí without a warrant, subject to internal procedure.

The Court of Justice deemed the 2006 Directive unnecessary and disproportionate as a means of targeting crime of terrorism.

The Court deemed the Directive invalid on four grounds.

First, the Court deemed the monitoring of the entire population excessive.

Second, the Directive failed to provide effective control over access and use of the data. In particular, the failure to insist that any request for data should be approved by a court.

Third, there was no clear justification as to why data stored on all citizens for an extended period of time, was chosen.

While the fourth ground was the failure to establish adequate security for the stored data, leaving it vulnerable to attack from hackers.

The Court concluded that the Directive interferes in a  particularly serious manner with the fundamental rights to  respect for private life and to the protection of personal data.

The case will now return to the High Court to decide whether Irish data retention law is unconstitutional given the Court of Justice judgment. The case also challenges the implementation of the Criminal Justice (Terrorist Offences) Act 2005.

ComReg benchmarking must be in line with EU directives

The imposition of price control by ComReg that could have reduced the cost of making mobile calls have been struck down in the High Court.

The European Union and ComReg have been attempting to reduce the fees that mobile companies charge each other for carrying calls, as these affect the prices paid by consumers.

The higher charges make it difficult for new companies to get a grip in the market.

Vodafone had appealed two decisions by ComReg, imposing new maximum wholesale charges to other mobile companies for service called ‘Mobile Voice Call Termination’.

Mr. Justice John Cooke noted ComReg had directed Vodafone to adopt a particular cost recovery method, and charge a maximum of 2.6 cent per minute from January 1st 2013, and 1.04 cent per minute from July 1st.

Mr. Justice Cooke observed, the issues concerned the nature of ComReg in its entitlement to take account of relevant directives on pricing and cost recovery methods.

The pricing instruction devised by ComReg to Vodafone was a result of benchmarking of what Vodafone charged against seven European Union member states.

Vodafone argued that the ComReg devised methodology was incompatible with European Commission rules, and that ComReg had acted unlawfully in benchmarking prices without reference to actual costs in Irish markets.

Mr. Justice Cooke observed that ComReg in its benchmarking approach in the price control decision was beyond the powers designated to ComReg under European Commission regulations.

The result produced by the use of a benchmark based upon only seven European Union countries is a result so flawed by its random nature and uncertain reliability that it could not constitute a sufficiently robust basis for the application of European Commission regulations.

The court allowed the appeal in part and set aside the direction by ComReg to Vodafone, ensuring that its mobile termination rates are set at 2.6 cent and 1.04 cent per minute.

While only Vodafone sought to challenge the decision of ComReg, the ruling will also have implications for the other mobile phone operators.

The case in the High Court related to a price-control decision by ComReg of November 2011 for the service known as ‘Mobile Voice Call Termination’.

Mr. Justice Cooke adjourned making final court orders, placing a stay on the judgment until September 24th.

NI: Same sex adoption in the best interests of the child

The Northern Ireland Court of Appeal dismissed a challenge on Thursday by the Department of Health to overturn a seminal High Court ruling that the prohibition on same-sex and unmarried couples adopting children is unlawful. Centred around judicial review proceedings was the blanket ban imposed under the Adoption (Northern Ireland) Order 1987.

In October 2012 the relationship status based ban was held to discriminate against those in civil partnerships. The High Court found excluding couples based on their relationship status limited the pool of potential adopters and could not be in the best interests of the children.

The High Court verdict came in a legal challenge mounted by the Northern Ireland Human Rights Commission. The Commission was seeking to force a legislative change to bring adoption laws into line with the United Kingdom.

In the United Kingdom, Scotland, and Wales, unmarried couples can apply jointly to be considered for adoption regardless of sexual orientation.

Attorney General for Northern Ireland appealed against the High Court ruling on behalf of the Department of Health. John Larkin QC argued that the criteria as it stood is lawful and appropriate and that the criteria serves in the best interests of the children.

Lord Justice Garvan held that the Department of Health failed to provide a proper explanation for why same-sex couples are ineligible once the relationship has been publicly cemented:

This cannot provide a rational basis or justification for the differential treatment of those  in a civil partnership compared to same-sex couples outside a civil partnership. 

Lord Justice Garvan expressed regret that until recently the website of the Department of Health failed to provide correct advice on the issue:

If it is to avoid being misleading Departmental guidance must take account of the effect of the law as it currently stands. It must take account of the outcome of the present appeal.

The Department of Health could seek to challenge the ruling in the British Supreme Court. 

NAMA is a public authority for the purpose of EU Regulations on access to information on the environment

Mr. Justice Colm Mac Eochaidh yesterday ruled that the National Asset Management Agency (or “NAMA”) is a public authority for the purposes of the European Communities (Access to Information on the Environment) Regulations 2007.

The ruling by Mr. Justice Mac Eochaidh is considered as having implications for a range of public authorities.

However, the ruling will have no implication for the Freedom of Information Act, which is due to be amended as part of a process that will include the National Asset Management Agency under the legislation.

The Agency claimed that it was not a public authority within the meaning of the 2007 European regulation. But Mr. Justice Mac Eochaidh said this was “absurd”.

Mr. Justice Mac Eochaidh re-affirmed the ruling of Ms. Emily O’Reilly, Commissioner for Environmental Information, who ruled in September 2011 that the Agency is a public authority within the meaning of the regulation.

An application to remit the matter to the commissioner was yesterday dismissed by Mr. Justice Mac Eochaidh.

Ms. O’Reilly issued her ruling in light of a refusal by the National Asset Management Agency to supply information, sought by a journalist in 2010, on the basis that the Agency is not a public authority within the meaning of the 2007 regulations.

An appeal to the Supreme Court is open to the National Asset Management Agency.