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.

Photographic evidence must be supplied with speed camera summons

The High Court has ruled that photographic evidence must be included with the summons issued to an accused. There must also be evidence that the "permanent visual record" (i.e. photographs(s)) has been given to an accused prior to the trial commencing.

The case was referred to the High Court by District Court Judge Mary Devins after Michael Gilvarry of County Mayo was summonsed for doing 93 kilometres per hour in an 80 kilometres per hour zone in Ballina on October 30th, 2011.

During the case several witnesses were called, including Inspector John McDonald from the Garda Fixed Charge Processing Office. In evidence Inspector McDonald gave an overview of, inter alia, the Office's prosecution works dealing with the capture of information.

In the course of cross-examination Inspector McDonald accepted that a copy of the photographic image should be provided to an accused before the trial began.

The Inspector gave evidence to the existence of a contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company, which was entered into in November 2009. The contract governed the outsourcing of functions from June 1st, 2011. Although he was not in a position to provide a copy of the contract to the Court.

Inspector McDonald also gave evidence that the "permanent visual record" provided by the Prosecution was the same as the original, but admitted that he was not familiar with the process of enhancement.

At the end of Mr. McDonald's evidence Ms. McGregor for Mr. Gilvarry made a total of five submissions.

Ms. McGregor submitted that there was no evidence before the Court that a "permanent visual record" was served on Mr. Gilvarry as required by the 2010 Act. Ms McGregor further submitted that there is no presumption with the 2010 Act that the relevant "permanent visual record" has been served on an accused.

Ms. McGregor submitted that the contract between the Minister for Justice, the Garda Commissioner and the Go Safe Company is the foundation of a number of presumptions relied upon by the Prosecution. Ms. McGregor cited sections 81(2)(ii), 81(6)(a) and (b) as examples.

Ms. McGregor submitted that the contract must be in evidence in order to prove: (i) that the person is authorised (e.g. Derek Walsh, the Go Safe Operator who gave evidence), and; (ii) the extent of the functions. Moreover, as the contract was not in evidence, the Court was not entitled to presume its existence or apply presumptions that might flow from its existence.

Finally, Ms. McGregor submitted that the "permanent visual record" is enhanced after downloading to the server and is therefore tainted as a result.

Judge Mary Devins adjourned the matter until November 2012, when she questioned the Director of the Go Safe Company about the contract. Mr. Browne said that the contract started on November 16th, 2010 and would run until November 15th, 2015.

Having indicated that she was unable to find any precedent dealing with the issues that arose in this case, Judge Devins posed three questions to the High Court.

One, was there evidence before the Court that the photographic evidence was served on Mr. Gilvarry as required by the 2010 Act? 

Two, does the prosecution need to provide a copy of the contract between Go Safe and the Minister for Justice or is it sufficient to give evidence of the existence of a contract? 

Three, is the photographic evidence tainted because it is enhanced after downloading to the server?

Answering the first question, Mr. Justice Kearns concluded that it is insufficient for a member of the Gardaí to state that it is normally the case that photographic evidence is included with the issued summons:

There must be evidence that it has in fact been given to an accused person before the trail commences. The evidential shortfall can easily be remedied if the statutory declaration of service of the summons were to also state that the summons, together with the "permanent visual record attached", have been served on [Mr. Gilvarry] prior to the trial.

On the second question, Mr. Justice Kearns found that it is not a necessary proof for the prosecution to provide a copy of the contract, or to formally prove every detail of the contract between Go Safe and the Minister for Justice. It is merely sufficient that the prosecution call a witness who is familiar with the parts of the contract that indicate that: (i) a contract envisaged by the relevant section was made; (ii) the parties to the contract, and; (iii) that contract is still in existence.

While there was no issue about the quality of the photographic evidence in this case, Mr. Justice Kearns observed that it is not necessary under the 2010 Act to prove that the technology used is accurate or in good working order. However, Mr. Justice Kearns observed that it is open to a defendant, such as Mr. Gilvarry, to give evidence that the photograph(s) furnished to him and submitted to the court were altered.

UK: Disclosure of cautions and minor convictions breaches right to private life

The Supreme Court has rejected a joint appeal by the Home Secretary and the Justice Secretary to overturn the Court of Appeal (Civil Division) judgment, in January 2013, that disclosure of cautions and minor spent convictions under the Rehabilitation of Offenders Act 1974 to prospective employers is not required.

The Supreme Court judgment arose from two separate cases. The first involved 'T', a male, who was forced to reveal two police cautions he had received as a minor in connection to theft when he applied for a job at a football club and enrolling in a course in sports studies.

The second case involved 'JB', a female, who was cautioned in 2001 on suspicion of theft of a packet of fake fingernails. However, in 2009, after training as a care worker 'JB' was prohibited from working in the care sector due to the police caution.

The Supreme Court held in both cases, the requirement to disclose to prospective employees minor convictions and police cautions breached Article 8 of the European Convention on Human Rights - the right to a private life - hindering entry into their chosen areas of work.

Despite the Court of Appeal placing a stay on the declaration from taking effect until permission to appeal was decided, the Secretaries of State made an order on May 22nd, 2013, which commenced May 29, 2013, with the aim of "eliminating" the incompatibilities. When the Supreme Court granted permission, the stay was extended until the judgment.

The Supreme Court judgment will mean criminal convictions will no longer have to be disclosed during a criminal record check where it did not lead to a prison sentence; does not relate to any of the fourteen listed categories of offence; and, where five-and-a-half years has elapsed for those under eighteen at the time of the conviction or eleven years for those over eighteen. For cautions, two years must have passed for those over eighteen and six years for those under eighteen.

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.

UK: Any deprivation of liberty must be subject to independent periodic review and authorised by court or statutory procedures

The Supreme Court yesterday ruled on what constitutes a deprivation of liberty for people unable to consent to their detention.

The judgment, following a three-day hearing in October 2013, will impact significantly on people unable to make certain decisions including those with autism, brain injuries, dementia and learning disabilities.

The Supreme Court was asked to set out the criteria for judging whether the living arrangements made for a person in local authority care amount to a deprivation of liberty.

In a majority verdict, the Court ruled in favour of 'P' and 'Q', finding that living either in supported accommodation or in foster care is a deprivation of their liberty. Accordingly, the Court held, this deprivation would require periodic independent review.

Any deprivation of liberty must be authorised by a court or by the Deprivation of Liberty Safeguards, as laid out in the Mental Capacity Act 2005.

In ruling Lady Hale observed:

[...] what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

The judgment provides for additional protection for those in local authority care.