Compatibility of Member States’ Alcohol Health Warning Labelling with EU Law

 

Dr Nikhil Gokani, Lecturer in Consumer Protection and Public Health Law at the University of Essex, Chair of the Alcohol Labelling and Health Warning International Expert Group at the European Alcohol Policy Alliance, Vice President of the Law Section at the European Public Health Association, and member of the Technical Advisory Group on Alcohol Labelling at WHO.

 *This blog is a condensed version of the following article: N Gokani, ‘Booze, Bottles and Brussels: Member States’ Dilemma on Alcohol Health Warnings’ (2024) 13(2) Journal of European Consumer and Market Law 97-102. The full article is available here. An open access version is also available here.

Art credit: William Hogarth, Gin Lane

 

Alcohol and the need for effective alcohol labelling

Alcohol is a causal factor in more than 200 diseases, injuries and disabilities. Even at lower levels of consumption, alcohol is associated with increased risks of heart diseases and stroke, liver cirrhosis, cancers and foetal alcohol disorders. In the EU, alcohol consumption causes between 255,000 and 290,000 deaths per year. Beyond health, alcohol results in significant social and economic losses to individuals and society at large.

Despite negative consequences of drinking alcohol, consumer awareness of its harms is low. The World Health Organization (‘WHO’) has repeatedly called on States to provide consumers with essential information through alcohol labelling. The EU has itself acknowledged the importance of consumer alcohol information, reflecting the foundation of EU consumer protection policy that consumers can be empowered through becoming well informed.

EU level regulation of alcohol labelling

Current EU rules in Regulation 1169/2011 on the provision of food information to consumers (‘FIC Regulation’) require alcoholic beverages with a content over 1.2% alcohol by volume (‘ABV’) to include alcohol strength on the label. Other health-related information, including ingredients list and a nutrition declaration, which are required on the labels of most food products, are exempt for alcoholic beverages above 1.2% ABV. EU law does not require any other health-related information to appear on the label. 

Member State developments on alcohol labelling

Health-related warnings are not explicitly addressed under EU law and several Member States have introduced national mandatory labelling rules. These have focused on two forms on messaging: mandatory labelling relating to the age of consumption, and messaging against drinking during pregnancy. 

In October 2018, Ireland signed into law its Public Health (Alcohol) Act 2018. In May 2023, Ireland signed into law as its Public Health (Alcohol) (Labelling) Regulations 2023. From May 2026, non-reusable alcohol containers will be required to include the following labelling. 

While feedback from civil society organisations representing public health and consumer protection expressed strong support, industry bodies from across the globe responded opposing the measure. The feedback questioned the compatibility of the Irish Regulations, and warning labelling in general, with EU law in three key ways, which are addressed in turn below.

Legal objection 1: The Irish rules constitute a discriminatory barrier to free movement

National labelling rules fall within the scope of the FIC Regulation, adopted under the competence the EU shares with Member States in the internal market.

In respect of matters not “specifically harmonised” by the FIC Regulation, there appears to be minimum harmonisation: Article 38(2) permits Member States to adopt certain national measures. Health warnings are not explicitly mentioned in the FIC Regulation, which might suggest health warning labelling is not “specifically harmonised”. Therefore, Member States may introduce national measures providing these do not undermine the protection in the FIC Regulation and are not contrary to general Treaty provisions.

In respect of matters which are “specifically harmonised” by the FIC Regulation, there appears to be maximum harmonisation: a declared desire to create uniform protection; an exclusivity clause, which prohibits the sale of non-compliant goods; and a market access clause which precludes national measures unless authorised by EU law. The mandatory particulars have been fully considered and listed, suggesting that mandatory labelling particulars have been “specifically harmonised” and therefore subject to maximum harmonisation. If alcohol health warning labelling is “specifically harmonised”, Member States may not undermine the protection in the FIC but may exceed it subject to general Treaty rules where the FIC Regulation itself allows. In this respect, the FIC Regulation includes a derogation which could allow Member States to exceed the standards under Article 39(1) to adopt rules requiring additional mandatory particulars justified on public health or consumer protection grounds.

Therefore, irrespective of whether health warnings labelling is specifically harmonised or not, under existing harmonisation, Member States are able to move forward with national warning labelling.

Legal objection 2: That the Irish rules are not consistent with existing EU harmonisation

The base protections set out in the FIC Regulation, which Member States may not undermine, are set out in Article 7 FIC as “fair information practices”. Food information shall be “accurate”, “clear and easy to understand”, and “not be misleading” particularly as to the “characteristics of the food” or “by attributing to the food effects or properties which it does not possess”.

Accurate: The Irish labelling is accurate when assessed against ordinary principle of scientific consensus. The evidence that “Drinking alcohol causes liver disease” is well-established, even with relatively lower levels of consumption and increasing with higher consumption. The evidence on the dangers of drinking during pregnancy is also clear. Alcohol intake can affect ability to conceive; brings about pregnancy complications; and interferes with foetal development known as foetal alcohol spectrum disorders, including low birth weight, small for gestational age and preterm birth. No amount of alcohol is considered safe during pregnancy. There is also well-established evidence that “There is a direct link between alcohol and fatal cancers”. Alcohol is classified as a group 1 carcinogen by the WHO International Agency for Research on Cancer as there is a proven causal link between alcohol and at least seven cancers. The risks arise irrespective of the type of alcohol consumed, exist at lower levels and increase with higher consumption.

Clear: The requirement that information is “clear” relates to legibility and visibility. The Irish warnings are likely to meet this requirement not least as they appear against a white background, are within a black box and have a minimum size.

Not misleading: The Irish labelling is also not misleading. In line with broader consumer protection in the internal market, compliance with information rules is assessed against the behaviour of the “average consumer who is reasonably well informed and reasonably observant and circumspect taking into account social, cultural and linguistic factors”. This notional average is an active player in the market who reads information, has background knowledge, is critical towards information, does not take information literally, and will not be misled easily if sufficient information is available. This average consumer is likely to understand the meaning in the labelling. Indeed, the pregnancy warning simply advises women not to drink during pregnancy as per national health guidance. The message that “There is a direct link between alcohol and fatal cancers” communicates association with fatal cancers but does not go as far as communicating a direct causal relationship notwithstanding the well-established evidence on causation. The warning that “Drinking alcohol causes liver disease” is not misleading as liver disease occurs with even relatively lower levels of consumption.

Legal objection 3: That the Irish rules are not proportionate

National alcohol labelling must also be proportionate, which it is when it is suitable and necessary to achieve its objective.

Legitimate objective: The primary objective for health messaging labelling is to inform consumers. While informing consumers appears to be the primary objective, this is part of a broader, secondary objective of reducing consumption. As the Irish Regulations have been introduced under the Article 39 derogation, the objectives are limited to “the protection of public health” and “the protection of consumers”. Alcohol control clearly falls within these broad grounds as the CJEU has consistently held that combating alcohol-related harm is an important and valid goal.

Suitability: Under the suitability limb of proportionality, it is necessary to determine whether the proposed labelling can attain its objectives of informing consumers and contributing to reduction in consumption as part of a broader suite of measures. In respect of the primary objective, evidence demonstrates that there is a deficit of knowledge about the health consequences of alcohol consumption and labelling informs consumers. Studies show that alcohol health warnings specifically lead to increased knowledge of health risks, including cancer, liver disease and pregnancy. Indeed, EU law already requires certain food products to be labelled with health warnings. As regards the secondary objective, there is also evidence supporting the contribution of labelling to reduction in harms and consumption.

Necessity: Under the necessity limb of proportionality, it must be determined whether a less intrusive measure can be equally effective as the proposed labelling to attain the objectives. Other measures are not equally effective. Labelling is available at both the point of purchase and point of consumption. Labelling is available on every container. It is targeted so that everyone can see the label when they see alcohol. It mitigates the effect of promotional marketing messaging on labelling. Ongoing costs are minimal. Moreover, the CJEU has consistently held that labelling is less restrictive than other interventions.

Moving towards effective alcohol health warning labelling

The objections raised by industry, that EU food law is a barrier to national rules on alcohol health warning labelling, are legally unsustainable. Therefore, in the absence of EU level action, Member States must take responsibility for moving forward independently. Let us hope the rest of the EU follows Ireland’s lead.

Nevertheless, EU institutions must also support Member States to tackle alcohol-related harm. Tides appeared to be turning with Europe’s Beating Cancer Plan, in which the Commission committed to introduce proposals on alcohol health warning labelling by the end of 2023, but the deadline has passed with no formal action. Let us also hope the EU decides to prioritise the health of consumers over the interests of economic actors.

 

 

 

 

High Trust Arrangements in a Low Trust Context: The Rwanda Policy’s impact on the Common Travel Area

 

 

Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via Wikimedia Commons

Introduction

The latest spat between the UK and Ireland over the knock-on consequences of the UK’s Rwanda policy exposes the tangled web of EU law and Common Travel Area (CTA) arrangements which now cover the interactions between both countries’ immigration policies. This post considers these interactions and proposals of the Irish Government to legislate in light of the Irish High Court decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has been a remarkably durable feature of relations between the UK and Ireland for over a century. In the immediate aftermath of a bloody war of independence, both countries recognised the mutual benefits of facilitating people moving across their new borders. And even at the height of the Brexit referendum campaign, pro-Brexit campaigners lined up to downplay any concerns around the land border because the CTA would continue after Brexit. Even if it was not, of itself, capable of ensuring an open border on the island of Ireland, the CTA was generally accepted as providing an important ongoing element of UK-Ireland relations. This always underplayed how difficult it was going to be to make these arrangements work post Brexit.

The CTA arrangement has been operable for so long on the basis that it works on two levels; unrestricted movement can take place between the parts of the CTA because each part enforces broadly comparable external rules of entry. For decades, the two states aligned their immigration policy and enforced a shared list of excluded individuals. After both joined the EEC at the same time, these arrangements were augmented by a range of EU law, but Ireland and the UK continued to jointly operate opt outs to let them maintain distinct elements of immigration policy and to provide more legal entitlements to each other’s citizens than they did to other EU citizens (see here).

Post Brexit, the immediate concern was over the UK’s commitment to the CTA. Once Brexit happened, the common external arrangement would no longer be operative, because EU citizens could continue to move freely into Ireland (whereas they would face new restrictions on moving directly to the UK). They could, however, then use the CTA to move into the UK, thereby circumventing the UK’s new immigration policy.  UK ministers, however, remained confident that they could deal with this issue by immigration enforcement away from the border (by requiring banks, landlords, etc to require individuals provide proof of status before accessing services). They therefore signed up to a new CTA deal with Ireland in 2019.

The latest spat in post-Brexit relations between the UK and Ireland, however, involves the necessary corollary of some of the concerns being raised before Brexit took effect. Once the UK set about tightening its restrictions on immigration, and particularly abandoning safeguards around refugees that it had implemented under EU law, would there be a displacement effect as people turned to Ireland instead to process asylum claims. This led to the claims by Ireland’s Justice Minister, Helen McEntee, that not only was there a sharp rise in asylum applications in Ireland in recent months, that 80% of new applicants were now crossing the land border from Northern Ireland. There has not been any evidence published to support this figure (a fact emphasised by some coalition government ministers from other parties, perhaps more alive to the consequences of ramping up these tensions for the CTA).

Groups like the Irish Refugee Council have pointed out that simply because the number of in-country applications has risen, this does not mean that all of those individuals have crossed the land border (people in the country on a different immigration status can make decisions to apply for asylum on the basis of a change in the circumstances of their home country, for example). But the impression that the UK Government’s Rwanda policy has had a direct knock on impact on Ireland, which needs to be addressed, has become central to ministerial thinking.

The position in Ireland

EU asylum law framework

The problem for Ireland is how to enforce returns to the UK, especially in light of the legislation closing off of routes to claim asylum in the UK. The starting point is that Ireland is bound by aspects of EU asylum law, having exercised the possibility to opt in to parts of it. In particular, Ireland opted into the first phase asylum procedures Directive, adopted in 2005, but not the second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’), both of which contain slightly different rules (optional for Member States) on ‘safe third countries’ – ie countries that asylum seekers could arguably make their applications in instead, other than their countries of origin or the country where they are applying now.

The ‘safe third country’ rules in the Directives refer to non-EU countries. If the argument is that the asylum seeker should have applied in an EU Member State or a Schengen associate (Norway, Iceland, Switzerland, Liechtenstein), a different set of rules (the ‘Dublin rules’) apply instead, which determine in detail which Member State is considered responsible for the application, how transfers of asylum-seekers to give effect to the responsibility rules work, and what rights asylum-seekers have to challenge the potential transfers. Ireland has opted in to the current version of those rules – the 2013 version of the Dublin Regulation, known as ‘Dublin III’ – which states that rather than apply those rules to transfer an asylum seeker to another Member State which is responsible, a Member State can choose (as an option) to send an asylum seeker to a non-EU country instead, in accordance with the ‘safe third country’ rules in the 2013 Directive. (One way for Ireland to get around difficulties sending asylum seekers back to the UK would be to revert to the Dublin rules and try to send more of them back to other Member States under those criteria; but that will not always work, for instance because there may not be enough evidence to apply those rules, or the responsibility for the Member State which they first entered illegally to deal with the asylum-seeker may have timed out).

Ireland intends to opt in to the 2024 versions of the Dublin Regulation and the procedures law – which will now become a Regulation – after they are formally adopted, which is scheduled for May 14 (on the details of the new Regulations, see here and here). The procedures Regulation will change the ‘safe third country’ rules again. However, this will not have an immediate impact, since these new Regulations will not apply until mid-2026. So the focus here is the current law.

According to the recent Irish High Court judgment, Ireland had ‘safe third country’ rules at several points previously, but reintroduced the possibility in 2020, when an omnibus law on Brexit amended the International Protection Act 2015 to provide again for ‘safe third countries’ to be designated. Obviously this legal change had the UK in mind – given that the Dublin rules ceased to apply to the UK at the end of 2020, when the Brexit transition period expired. Indeed, the Irish government promptly used these new powers to designate the UK as a ‘safe third country’.

EU ‘safe third country’ rules

The 2005 ‘safe third country’ rules, which apply to Ireland as such, state that a Member State can apply the concept ‘only’ if ‘the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:’

a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

b) the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected;

c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The Directive goes on to state that ‘[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:’

a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant’, which must ‘include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’;

c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

Next, Member States must:

a) inform the applicant accordingly; and

b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

Finally, if the non-EU country concerned ‘does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in’ the Directive.

The 2013 Directive is similar, except for adding ‘there is no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status] to the list of principles that must apply in the non-EU country, and providing that the applicant must be permitted to argue that the non-EU country ‘is not safe in his or her particular circumstances’ and ‘to challenge the existence of a connection between him or her and the third country in accordance with’ the Directive.

The impact of designating a country as a ‘safe third country’ is that the application is inadmissible on the merits – on the assumption that it will be considered on the merits in the other country instead, because it is presumed that the asylum-seeker will apply for asylum in that country after being expelled there. The case will be fast-tracked, and it may be harder to stay on the territory in the event of an appeal against the decision than in some other cases.

The Court of Justice has ruled several times on the interpretation of the ‘safe third country’ rules in the 2013 Directive: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries, and that Hungary had not fully provided for the guarantees related to the ‘safe third country’ concept’ required by the Directive in its national law.

The High Court judgment

The Irish High Court judgment ruled that the Irish government’s designation of the UK as a ‘safe third country’ was unlawful; but it did not rule on whether or not the UK was actually safe. This apparent paradox stems from the nature of administrative law, which often concerns itself with whether the public administration followed the correct procedure, rather than the merits of the decision – in part because courts are often more willing to review the procedure which a government applied to take a decision than the merits of that decision, which are seen as to some extent a matter of political discretion. So it’s possible that after a court quashes a government measure as unlawful on procedural grounds, the government could back and lawfully adopt the same decision again, provided that it now does so following the correct procedure. (And to knock on the head another common misconception: a minister taking an unlawful decision does not mean that the minister has committed a crime)

So why was the designation of the UK as a ‘safe third country’ unlawful? Mainly because the Irish law from 2020 providing the powers to designate such countries was not fully consistent with EU law, particularly because it did not provide the guarantees required in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (As noted above, the CJEU came to a very similar conclusion regarding Hungary’s lack of full application of those guarantees, but oddly the High Court judgment makes no reference to this case law). Also, there had not been a continual review of the position in the UK.

However, this did not mean – despite a popular misconception on this point – that the High Court judgment ruled that the UK was unsafe because of the UK’s Rwanda policy. In fact the judgment is at pains to point out that it was not reaching any conclusion on the Rwanda policy one way or another.

The Irish government’s response

The Irish government has announced plans to adopt legislation to designate the UK as a ‘safe third country’. Depending on the content, this may be sufficient to address the specific reasons why the High Court found that the previous designation was unlawful. But this is not the end of the story, because, as we have seen, the High Court did not get into the merits of whether the UK was ‘safe’ or not, particularly in light of the Rwanda policy, which has moreover developed since. Any fresh legislation could be challenged on those grounds. It’s even possible, if fresh challenges are brought, that an Irish court may want to send questions to the CJEU on this or other aspects of interpretation of the ‘safe third country’ rule. (Incidentally, as the Irish High Court did not rule on the merits of whether or not the UK was 'safe', the Irish government - unlike the UK recently - is not legislating to overturn a court judgment on whether another country is 'safe').

Furthermore, there are other elements to the EU rule, not discussed much in the High Court ruling. As noted above, there must be a ‘connection’ between the asylum seeker and the non-EU country (a point notably missing from the Rwanda policy, on the UK side), and the case law says that mere transit is not enough to create a connection. The two asylum-seekers concerned by the previous High Court judgment had been deemed to have spent enough time in the UK to have a ‘connection’, but that will arguably not be the case for all asylum-seekers who might make their way via the UK to Ireland.

Another point – also scrapped on the UK side in the Rwanda policy – is that the asylum-seeker must be readmitted by the non-EU country. The EU rules thus aim to avoid the very limbo that thousands of asylum-seekers are subject to in the UK, where their cases are inadmissible but with no country willing or obliged to decide their applications on the merits. While the High Court judgment refers to UK willingness to readmit asylum seekers previously (see para 44), the UK has now announced that it is not willing to do so, perhaps because it views the CTA arrangements as not binding. This obviously creates a further issue on the EU side (on the readmission/’safe third country’ nexus in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

As well as the Irish dimension to this argument, there is also a Northern Irish aspect. Notwithstanding the current wrangling, many question marks hang over the UK’s policy under the Illegal Migration Act 2023, as extended by the Rwanda Act 2024, and particularly over how they apply in the context of Northern Ireland. As part of the EU-UK Withdrawal Agreement the UK committed to ensuring no diminution of rights and equality protections operative in Northern Ireland law as a result of EU law because of Brexit (Windsor Framework, Article 2). It did so to avoid any claim that Brexit jeopardised the rights provisions of the Belfast/Good Friday Agreement 1998, some of which had come to rely upon EU law in practice. This concession headed off a lightning-rod argument for opposition to Brexit in the Northern Ireland context, and enabled the deal to proceed.

But now that these arrangements are in place, and operative, it means that Northern Ireland has a separate (and higher) floor of rights protections than the remainder of the UK. It is arguable that many aspects of EU law applicable to asylum seekers, and providing protections for them (including the Trafficking Directive), continue in full effect in Northern Ireland post Brexit. As pointed out in previous posts (here and here) the courts have the ability to disapply statutes insofar as they conflict with the Windsor Framework arrangements. In other words, this casts doubt on whether the UK Government’s flagship policy on asylum seekers can apply equally in all parts of the UK. The issue has already been argued before the Northern Ireland High Court with regard to the Illegal Migration Act (judgment is pending). Even if the Rwanda Act closes off many legal challenges, asylum seekers within Northern Ireland are therefore likely to try to use the Windsor Framework to challenge any deportations under these measures for the foreseeable future. 

Conclusions

Amid the tangle post-Brexit arrangements, both countries appear to be talking at cross purposes. For the UK Government, Brexit removed its obligations to comply with the Dublin III regulations and the arrangements thereunder for return of asylum seekers to other EU countries (and it cites the restrictions on it being able to enforce the return of individuals to France post Brexit as evidence of this). For the Irish Government, the Dublin III process might have been used when both countries were EU Member States, but the underlying CTA relationship sprang back into full effect (although conditioned by its own EU obligations) once the overlaying EU law was removed post Brexit. In reality, so much of the CTA relies on shared understandings and reciprocal nods, that there is considerable scope for misinterpretation. Indeed, two countries which were engaging with each other in the close collaborative relationship that the CTA requires might well have been expected to publicly make the appropriate arrangements in advance of Brexit taking effect (but that, alas, is not where UK-Ireland relations are at – see Professor Bernard Ryan here).

Elections loom in both Ireland and the UK, and many politicians in both countries have decided that there are votes to be won in looking tough on immigration. When refugees and asylum-seekers are at issue, however, it is difficult to ignore the fact that both countries process a relatively low number of asylum claims on a European level. But both countries are at loggerheads over policies which increasingly put the CTA arrangements in jeopardy and which seek to ignore the fact that conflict and persecution necessarily create more refugees. Both, it has to be concluded, would like this to be someone else’s problem.

EU/Canada free trade and the Irish constitution: Costello v The Government of Ireland and Ors [2022] IESC 44 - Case Comment

 

 

Dr John Cotter, Lecturer in Law, Keele University, UK

Photo credit: Guiseppe Milo, via wikicommons media

 

Background

 

The EU-Canada Comprehensive Economic and Trade Agreement (CETA), signed on 30 October 2016 following five years of negotiations, was in retrospect concluded at a pivotal moment in the history of EU trade policy. Though trade policy might not have been the most salient issue in the Brexit referendum earlier that year, prominent Brexiters nevertheless sought to make hay from the EU’s torpid progress in concluding trade deals with third countries, arguing that a nimbler post-Brexit UK would be free to conclude and ratify trade agreements at a faster pace. Less than a month later, in November, Donald Trump won the US Presidential election, which would ultimately put paid to the prospect of completion of the Transatlantic Trade and Investment Partnership (TTIP). Of course, those with a reasonable grasp of EU trade law and policy knew that the signature of CETA marked only the end of the beginning; as a mixed agreement (ie both the EU and its Member States were parties), CETA would require ratification by not only Canada and the EU, but also by all EU Member States. Political opposition, as well as anticipated constitutional and other legal challenges, meant that ratification by all Member States might be a drawn-out affair and was by no means certain.

 

CETA was approved by the European Parliament on 15 February 2017 and ratified by Canada on 16 May 2017. To date, sixteen current EU Member States have notified the European Council of ratification. On 21 September 2017, in accordance with Council Decision 2017/38, most of the agreement was afforded provisional application. However, several key provisions of the agreement were excluded from provisional application. Of relevance to this blogpost, key provisions of Chapter 8 (investment) were excluded; in particular, those relating to the new Investment Court System (ICS). This ICS comprises a permanent arbitration tribunal (the Tribunal) and an Appellate Tribunal. The Tribunal, which will consist of fifteen members appointed by the EU-Canada Joint Committee established to oversee the application of CETA, will hear and determine claims by investors that a party to CETA has breached certain obligations under the agreement which has resulted in financial loss to the investor. Where a claimant investor is successful, the Tribunal may award compensation, with the parties, including of course EU Member States, being required to recognise and comply with any award without delay. However, execution of any award domestically will be governed by the laws concerning execution of judgments or awards in the state in which execution is sought. It is worth mentioning that an application for execution of a Tribunal award would not have to be brought before courts or tribunals of the defendant state; enforcement could be sought in any state which is a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID).

 

As expected, CETA attracted legal challenges, with the ICS being an especial bone of contention. The most notable of these was in Opinion 1/17, in which the Court of Justice, sitting as a full Court, upheld the compatibility of CETA with EU law in the face of concerns expressed by Belgium that, among other things, the ICS might be incompatible with the autonomy of the EU legal order. In March 2022, the German Bundesverfassungsgericht upheld the constitutionality of the provisional application of CETA, though the constitutionality of the ICS in Germany remains an open question. On 11 November 2022, a majority of the Supreme Court of Ireland ruled that ratification by Ireland of CETA as matters stand would be unconstitutional.

 

Facts, arguments, and the Irish constitutional context

The constitutional challenge to CETA in Ireland was brought by Patrick Costello TD, a Green Party member of the Dáil (the lower house of Ireland’s parliament, the Oireachtas). Pursuant to Article 29.5.2˚ of Bunreacht na hÉireann (the Constitution of Ireland), any international agreement which involves a charge on public funds must be approved by the Dáil in order for that agreement to be binding on the State. Mr Costello argued, however, that CETA could not be ratified by the State without an amendment to the Constitution, which would require a referendum. It was submitted on behalf of Mr Costello that CETA involved the otherwise unconstitutional transfer of legislative and juridical power of the State over to institutions established by CETA. As regards legislative power, it was argued that CETA provided rule-making powers to the CETA Joint Committee which amounted to a power to make laws which would be binding in Ireland in contravention of Article 15.2 of the Constitution, which vests sole and exclusive law-making powers for the State in the Oireachtas.

With respect to juridical power, it was contended that the ICS established under Chapter 8 of CETA would be contrary to Article 34.1 of the Constitution, which provides that “[j]ustice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution”. This juridical power within Ireland held exclusively by Irish courts would be infringed because CETA in conjunction with domestic legislative provisions in the Arbitration Act 2010 would require Irish courts to give virtually automatic effect domestically to awards made by CETA Tribunals. Mr Costello was unsuccessful before the High Court, where Butler J took the view that CETA would bind the State as a matter of international law only and that any decisions of the CETA Joint Committee could not be characterised as laws made for the State within the meaning of Article 15.2. Butler J also held that the disputes to be determined by the CETA Tribunals did not constitute the “administration of justice” within the meaning of the Constitution and therefore would not interfere with the powers of the Irish courts in that regard.

Central to this case in every sense is the concept of sovereignty. Ireland’s history and the anxieties of the framers of Bunreacht na hÉireann leap forth from the constitutional text. The preamble refers to “heroic and unremitting struggle [of our fathers] to regain the rightful independence of our Nation”. The very first article asserts the “inalienable, indefeasible, and sovereign right [of the Irish Nation] to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.” Article 5, with reference to the State, declares that Ireland is a “sovereign, independent, democratic state.” These assertions are given mechanical form in various provisions throughout the Constitution which confer the sole and exclusive law-making power for the State on the Oireachtas (Article 15.2) and the administration of justice in courts established by law (Article 34.1). Consistent with this protectionist approach to sovereignty, Article 29 also establishes that Ireland adopts a dualist approach to international law obligations. Those with pre-existing knowledge of Ireland’s history in the EU will be aware of these facts. In order for Ireland to join the then EEC in 1973, which involved the ceding of some sovereignty, and of legislative and judicial power in the State to European institutions, a referendum had to be held in 1972 to approve the requisite amendment to Article 29. In 1986, when the Irish government sought to ratify the Single European Act sans a constitutional amendment, lawyers on behalf of Raymond Crotty in Crotty v An Taoiseach were successful in convincing the Supreme Court that an international agreement involving the cession of external sovereignty would require a further amendment to the Constitution and, therefore, a referendum. Europe has had to hold its breath while awaiting the results of a number of Irish constitutional referendums since. Mr Costello was evidently hoping to add another chapter to that story.

 

Supreme Court judgments

Hogan J in his judgment opined that the appeal before the Supreme Court “may yet be regarded among the most important which this Court has been required to hear and determine in its almost 100-year history” (para. 9). The appeal also resulted in a deeply divided court, with each of the seven judges authoring substantial (and in some cases lengthy) judgments which require close examination to reveal the ratio of the case. Mercifully, the judges were able to whittle the appeal down to six issues, set out in the judgment of Dunne J (para. 13):

i)                    Whether ratification of CETA was necessitated by the obligations of membership of the EU.

This had been an argument advanced on behalf of the State in the alternative to the assertion that CETA could be ratified utilising normal processes under Article 29. All seven judges (O’Donnell CJ, Dunne, Hogan, Charleton, McMenamin, Power, and Baker JJ) rejected what one suspects was a rather half-hearted argument, ruling that EU membership did not necessitate ratification of CETA.

ii)                   Whether CETA amounted to a breach of Article 15.2 of the Constitution (sole and exclusive law-making power of the Oireachtas).

It had been submitted on behalf of Mr Costello that CETA would involve interference with the law-making powers of the Oireachtas for the State. In this regard, Mr Costello’s lawyers pointed to the jurisdiction of the CETA Tribunals to make awards against the State for losses suffered by an investor as a result of the operation of a provision of Irish law, arguing that the threat of such awards would create a ‘regulatory chill’ which might prey on the minds of Irish law and policy makers. The Supreme Court was divided on this question, with the majority (O’Donnell CJ, Dunne, McMenamin, Power, and Baker JJ) ruling that CETA would not amount to an interference with the law-making powers of the Oireachtas. Hogan and Charleton JJ, dissented on this point, with the former pointing in particular to the fact that CETA provides for a “form of strict liability on the part of the State in respect of legislation which is found to be contrary to CETA and insofar as it does not contain a good faith defence” (para. 14).

iii)                 Whether the creation of a CETA Tribunal amounted to the creation of a parallel jurisdiction or a subtraction from the jurisdiction of the courts in Ireland contrary to Article 34 of the Constitution (conferral of ‘administration of justice’ in courts established under the Constitution).

In essence, the issue amounted to whether one viewed the CETA Tribunal as a body which would hear and determine disputes which were purely matters of international law (not constitutionally problematic) or whether it amounted to a body which would (or could) become involved in disputes that might otherwise have been heard and determined in Irish courts (possibly constitutionally problematic). Again, the Supreme Court was divided on this issue, with the majority (O’Donnell CJ, McMenamin, Power, and Baker JJ) of the view that CETA did not involve the impermissible withdrawal of disputes from the jurisdiction of Irish courts. Dunne, Hogan, and Charleton JJ differed on this point, though the former two judges pointed to the fact that their chief constitutional objection in this regard arose from the fact that the judgment of a CETA Tribunal would be, in Hogan J’s words, “virtually automatically enforceable” in Ireland (para. 15).

iv)                 Whether the ‘automatic enforcement’ of a CETA Tribunal award by virtue of the enforcement provisions of CETA in conjunction with the provisions of the Arbitration Act 2010 is contrary to Article 34 of the Constitution.

As Ireland is a dualist state, an award granted by an international tribunal will not enjoy automatic enforcement in Irish courts unless such enforcement is provided for specifically under Irish law. In the absence of such a domestic law, therefore (unless one takes the view that the primacy of EU law or the principle of sincere cooperation under Article 4(3) TEU would require enforcement of CETA awards domestically), CETA awards would not be enforceable in Ireland. However, sections 24(1) and 25(3) of the Arbitration Act 2010 give force of law in Ireland to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) and ICSID respectively. CETA in turn provides that awards made by the CETA Tribunals are awards for the purposes of the aforementioned international law instruments, meaning that following ratification, CETA Tribunal awards would, save in very limited circumstances, be automatically enforceable in Ireland. Automatic enforcement of CETA Tribunal awards would raise a constitutional difficulty in that it would effectively confer the final decision in a dispute concerning the ‘administration of justice’ within the meaning of Article 34.1 to an international tribunal rather than the Irish courts. On this point, a majority of the Supreme Court (Dunne, Hogan, Charleton, and Baker JJ) held that the virtual automatic enforcement of CETA Tribunal awards in the State would be a violation of Article 34. The reasoning of Hogan J was particularly interesting in this regard; borrowing apparently from the jurisprudence of the German Bundesverfassungsgericht, Hogan J found that the combination of CETA and the 2010 Act would mean that the Irish courts “would have no power to refuse enforcement even where the award compromised Irish constitutional identity or constitutional values in a fundamental way or where it was inconsistent with the requirements of EU law” (my emphases).

v)                  Whether the effect of the interpretative role of the CETA Joint Committee and its role are a breach of Article 15.2 of the Constitution.

Article 25 of CETA allows the CETA Joint Committee to make interpretative decisions which are binding upon the CETA Tribunals. A question arose as to whether these interpretative decisions would constitute an interference with the sole and exclusive law-making function for the State of the Oireachtas under Article 15.2. On this issue, the majority of the Supreme Court (O’Donnell CJ, Dunne, McMenamin, and Power JJ) held that that interpretative role of the CETA Joint Committee was constitutionally permissible. Again, the dissents (Hogan, Charleton, and Baker JJ) were noteworthy. Hogan J, in particular, opined that CETA Joint Committee interpretative decisions amount to “a form of quasi-legislation” which in practice would involve a de facto amendment of CETA without the constitutionally mandated prior consent of the Dáil under Article 29.5.2˚ (para. 17).

 

vi)                 Whether an amendment to the Arbitration Act 2010 to alter the ‘automatic enforcement’ of a CETA Tribunal award would allow ratification of CETA without an amendment to the Constitution and attendant referendum.

The majority of the Supreme Court had held that ratification of CETA would be unconstitutional owing to the fact that CETA Tribunal awards would be virtually automatically enforceable arising from the interaction of CETA and the Arbitration Act 2010, which would constitute an interference with the constitutionally defined jurisdiction of the Irish courts. One might be forgiven therefore for concluding that ratification of CETA would require a constitutional amendment and a referendum. The Supreme Court, however, took it upon itself to signpost a less complicated way out of the quandary. Hogan J suggested that amendments to the Arbitration Act 2010, which would empower the Irish courts to refuse to give effect to a CETA Tribunal award (on the grounds of Irish constitutional identity or obligations under EU law), would cure the unconstitutionality identified by the majority of the Court (paras 228-237). All of the judges of the Court, save for Charleton J agreed that Hogan J’s prescription would cure the unconstitutionality (or be constitutionally permissible, in the case of those judges who saw no unconstitutionality in the first place). Charleton J’s “ultimate dissent” posited the view that the suggested amendments to the 2010 Act would be ineffectual since the primacy of EU law flowing from Ireland’s obligations to the EU under Article 29 of the Constitution would render it impossible to refuse to enforce a CETA Tribunal award on grounds such as Irish constitutional tradition (para. 62).

 

Observations

 

Viewed formalistically, the Costello case is purely about the Constitution of Ireland, not CETA itself or indeed, in a direct sense anyway, EU law. There is certainly more than enough in the Supreme Court judgments to engage Irish constitutional scholars for another century. However, the judgments of the Supreme Court have much of interest to say to trade and investment lawyers, as well as EU lawyers, and it is on these points that I will focus my observations.

 

In order to assess constitutionality, the judges had to analyse the CETA agreement and in many cases make assumptions about its likely operation. In examining the possible effects of CETA on Irish legislative and juridical sovereignty, Hogan J, for instance, took what might be described as a precautionary approach in entertaining (perhaps remote) hypotheticals in which CETA Tribunal awards might result in inhibiting the formulation of legislative policy by the Oireachtas. Hogan J also identified the interpretative role of the CETA Joint Committee as potentially quasi-legislative in nature, with the possibility that this role could be used to effect de facto amendments to the text of CETA. Ironically, it may be the historic expansive interpretation of the EU Treaties by the CJEU, some of which have arguably amounted to de facto textual amendments, that have led to some fear about international or supranational institutions using interpretative powers to change the nature of an international agreement beyond what was ratified at national level. O’Donnell CJ, in contrast, seemed to take a much more sanguine approach to how international agreements like CETA operate in practice and to show concern for what an overly cautious and sovereigntist approach might have on the ability of the executive to conclude international agreements. On a related note, while Hogan J’s suggested constitutional cure was accepted by a majority, Charleton J maintained forcefully that the primacy of EU law would nullify the effect of any such amendments. In the perhaps unlikely scenario that it transpires that Charleton J is correct on this point, it could result in a situation where CETA was ratified by Ireland based on a misapprehension on the part of the majority of the Supreme Court on the nature of the CETA enforcement obligations. This is a conceivable prospective mess that might have been avoided by a preliminary reference to Luxembourg.

 

The stinging criticism by Hogan J (a former Advocate General at the Court of Justice) to the CJEU’s approach to CETA in Opinion 1/17 is also notable. Although keen to point out the differing constitutional contexts, Hogan J identified what he saw as weaknesses in the CJEU’s reasoning. Taking a position more defensive of legislative and juridical sovereignty (or autonomy) Hogan J rejected, for instance, the CJEU’s notion that only repeated awards of damages by the CETA Tribunals could impact EU or national regulatory legislation and policy making. Hogan J pointed also to the fact that the CETA Tribunals could in practice disregard CJEU jurisprudence and that there would be no remedy in EU or national law for such disregard, a matter the judge believed to be a “significant structural weakness” in the drafting of CETA.

 

Likewise of note in the judgment of Hogan J is the appearance of the idea of Irish constitutional identity and constitutional values. Seemingly drawn from the terminology of Karlsruhe, this is the first time that such phraseology has appeared in an Irish court judgment. It should be noted, however, that the use of the terms is limited to the enforceability of CETA Tribunal awards in the State. There is no suggestion that such concepts could be utilised to justify non-compliance with obligations flowing from EU membership; indeed, Hogan J made it abundantly clear that if ratification of CETA were required by obligations arising from EU membership that would have overridden any other possible constitutional objection.

 

As a final remark, the Supreme Court judgments were received with some fanfare by opponents of CETA on the day of their publication. While they are of major legal significance, they – in reality – place little in the way of legal obstacles to the ratification of CETA in Ireland.

 

 

 

Data Retention: AG opinions on the latest CJEU cases on national laws

 

Lorna Woods, Professor of Internet Law, University of Essex

 

Introduction

 

Advocate General Campos Sanchez-Bordana has handed down his opinions in three more cases (SpaceNet and Telekom Deutschland (Joined Cases C-793/19 and C-794/19), GD v Commissioner of the Garda Síochána (Case C-140/20) and VD and SR (Joined Cases C-339/20 and C-397/20)) which concern the retention of communications data, and constitute the latest instalment of a saga that started – ineffectually as far as rights-based arguments are concerned – in the unsuccessful Irish challenge to the Treaty base chosen for the Data Retention Directive (Directive 2006/24/EC) (Ireland v European Parliament and Council (Case C-301/06)). 

 

The Data Retention Directive, which provided for communications data retention, effectively within the scope of the exceptions found in Article 15 of the e-Privacy Directive (Directive 2002/58/EC) to the principle of communications confidentiality, was struck down in Digital Rights Ireland (Joined Cases C-293/12 and C-594/12) (discussed here).  Building on the principles there, a series of cases developed the constraints on what was permitted by Article 15 e-Privacy Directive, notably: Tele2 Sverige and Watson (Joined cases C-203/15 and C-698/15) (discussed here and here), La Quadrature du Net and Others (Joined cases C-511/18, C-512/18 and C-520/18) and Privacy International (Case C-623/17) (discussed here). Points of detail have been added in Ministerio Fiscal (Case C-207/16) (discussed here) and HK v Prokuratuur (Case C-746/18).  The principles underpin the data transfer cases: Schrems I and Schrems II. As well as recommending that the Court continue with its approach, maintaining the gap between it and the European Court of Human Rights, the Opinion of the Advocate General indicated a certain irritation with the national courts unwilling to apply clear principles and necessitating more Grand Chamber rulings on this topic.  In other words, not much is new here, but rather a re-iteration of the principles and distinctions on which this juriprudence has been built.

 

The Cases

 

SpaceNet and Telekom Deutschland concern the German legislation requiring internet service providers to retain communications data. Reflecting to some degree the concerns highlighted in the CJEU’s previous jurisprudence, the German law had excluded the communications data of certain help lines from the regime, the data collected was retained for a comparatively short period, and there were safeguards against misuse of the retained data. SpaceNet and Telekom Deutschland had each challenged this law on the basis of the CJEU’s jurisprudence.

 

GD v Commissioner of the Garda Síochána arises from a murder case, the prosecution of which was based on communications data retained and accessed via legislation that provided for mass retention of data. The defendant challenged the admissibility of this data arguing it was contrary to EU law requirements.

 

Joined cases VD and SR also concern criminal prosecution for financial offences, based on communications data. This time the data retention was based on national law implementing Directive 2003/6/EC, as well as Regulation 596/2014, rather than concerning the e-Privacy Directive. These rules allowed access to existing communications data held by telecommunications operators. The reference raised the question of these rules’ compliance with the fundamental rights of Article 7 and 8 EU Charter, as interpreted by the case law on the e-Privacy Directive.

 

In each case, the Advocate General suggested that the Court hold that the national laws were incompatible with Charter rights, re-iterating that the relevant provisions

‘must be interpreted as precluding national legislation which obliges providers of publicly available electronic communications services to retain traffic and location data of end users of those services on a precautionary, general and indiscriminate basis for purposes other than that of safeguarding national security in the face of a serious threat that is shown to be genuine and present or foreseeable’ (Spacenet, para 84)

 

In all three opinions, he re-stated the conditions found in La Quadrature du Net, para 128. This principle was specifically applied to investigations into insider dealing or market abuse (ie not national security) in VD and SR (para 97). In GD it added that access to such data legitimately retained must be subject to prior independent authorisation, and that the temporal effect of the ruling could not be limited (so that the ruling had prospective effect only) (GD, para 82 – see to similar effect VD and SR, para 97). The Advocate General also noted that there was a distinction between the approach of the CJEU and the European Court of Human Rights, but that the jurisprudence of that Court provided a base level and the requirements of the Charter could be higher than those of the Convention.

 

Comment

 

The jurisprudence has built on a series of, generally binary, distinctions, the most basic of which is that between EU and national competence, given that Article 4(2) TEU requires the EU to respect Member States’ essential state functions, including maintaining law and order. It specifically states:

 

“national security remains the sole responsibility of each Member State”.

 

Many Member States use data retention and the analysis of data as part of their fight against terrorism and in support of national security. On this basis it has been argued that national laws providing for such schemes fall outside the competence of the EU, and in SpaceNet a number of governments intervened to make the same argument again.  This argument in the words of the Advocate General has been “emphatically rejected” (SpaceNet, para 32), citing La Quadrature du Net, though this position is more clearly seen in Privacy International and had already been established in Tele2 Sverige and Watson (and could be seen as implicit in the distinctions employed in Ireland v European Parliament and Council). While Article 4 TEU does exclude national security from the scope of EU law, it is to be narrowly understood - applicable to the activities of intelligence agencies for the purposes of safeguarding national security. This seems to be a well-established principle and unlikely to be disturbed now, no matter the representations of the Member States.

 

Another longstanding distinction made in the case law is between content of communications and communications data (meta data), including traffic data (which seemingly also includes the subscriber name and the IMEI address of the mobile device according to Ministerio Fiscal, paras 40-42) and location data.  Mass acquisition of the content of communications goes to the essence of the right and cannot be justified. The Court has accepted that the acquisition of communications data in principle could be justified, as can be seen in Tele2 Sverge and Watson, Privacy International and La Quadrature du Net, suggesting that the intrusion cause by mass acquisition of communications data is less intrusive than knowledge of content. Whether – given the harm attributed to this collection: the possibility of creating detailed profiles on individuals – this is wholly true is debatable.  Note, however, that the Court has accepted that some sorts of data may be seen as less sensitive – notably identity and IP addresses in the context of criminal investigations.

 

The Court suggested in Ministerio Fiscal that the intrusion was less (perhaps to enable itself to justify taking a different approach from Tele2 Sverige and Watson), though it was unclear as to whether this was to do with the type of data in issue or because of the limited amount of data involved (and its severability from other data). In its ruling, the Court confirmed that access to retained data which reveals the date, time, duration and recipients of the communications, or the locations where the communications took place, must be regarded as a serious interference since that data allows precise conclusions to be drawn about the private lives of the persons concerned (para 60), suggesting it is what you can do with the data that is important rather than the amount of data.  The Court has suggested in other contexts that certain types of data are less important: see the data involved in PNR cases (Opinion 1/15, especially para 151, discussed here). In the current opinions, the Advocate General reiterated the position in La Quadrature du Net as regards IP addresses and identity (Spacenet, paras 81-82; VD and SR, para 80) but did not elaborate further.  The question about small sets of eg location data remains open. 

 

This possibility of profiling and its impact on users has led the Court to develop stringent conditions for the collection of data which are based on two interlinking sets of distinctions: that between general and targeted measures, and between national security and the fight against crime (with a sub-division between serious and other sorts of crime).  For all three cases, the Advocate General re-iterated the general principles established by the case law to date- though it is worth noting that he relied for preference on La Quadrature du Net (as a judgment which synthesised or summarised preceding case law), rather than other landmark cases – notably Tele2 Sverige and Watson – perhaps because (in the eyes of some) La Quadrature du Net allowed some State measures that would not seem on first glance to fall within Tele 2 Sverige and Watson – and which the Advocate General described as “supplementary qualifications” (GD, para 4). So, “general and indiscriminate retention of traffic and location data can be justified only by the objective of safeguarding national security”, which is distinct and more serious or important than the other objectives listed in Article 15 e-Privacy Directive (GD, para 36, Spacenet, para 37, VD and SR, para 75, each citing La Quadrature du Net). In sum, provided all the other conditions are satisfied, national security threats justify indiscriminate data retention, whereas serious crimes only suffice to legitimise targeted data retention.

 

Of course, this begs the question of what falls within national security for the purposes of Article 15 and what constitutes serious crime. According to Ministero Fiscal, the boundary between crime and serious crime falls to be determined by the Member States. While respecting national procedural autonomy, this might be open to manipulation or interpreted broadly (as the special, expansive definition of serious crime in the Investigatory Powers Act – when the UK was still a member of the EU – suggests). The Court in La Quadrature du Net suggested that national security

 

“encompasses the prevention and  punishment of activities capable of seriously destabilizing the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself” (para 135). 

 

In VD and SR the Advocate General emphasised that the two types of measures – those aimed at safeguarding national security and those which are aimed at combatting crime – cannot have the same scope as otherwise the distinctions in La Quadrature du Net (with regard to the possibility of indiscriminate surveillance) would have no purpose and the fundamental rights protections would likely be undermined – and this is true no matter how serious the crime (VD and SR, paras 83-86).

 

As regards targeting, the Court has suggested that this need not be at the level of the individual but could relate to localities or to groups – suggestions which may raise all manner of social, political as well as technical questions (and see here, Interpol’s distinctions). As the Advocate General pointed out, it is not the responsibility of the CJEU to draft compliant regimes; this is the responsibility of the Member States.

 

La Quadrature du Net imposed conditions on national security and generalised surveillance, as well as on targeted surveillance for serious crime. In Privacy International, the CJEU restated its position that national legislation must develop objective criteria for both the acquisition of a particular dataset from a service provider and its actual use by the relevant authorities (see paras 78-81). Moreover, it seems that these conditions apply not just to traffic and location data, but also provisions regarding the preventive retention of IP addresses, subscriber information and other measures aimed at combatting serious crime. But, there are questions about the extent to which various sorts of safeguards may compensate for other weaknesses in the system (and this same question can be seen in respect of the European Court of Human Right’s jurisprudence where it blends lawfulness with safeguards and safeguards with proportionality, effectively reducing the scrutiny over acquisition in favour of control over use – an approach which does not deal with the chilling effect of Government access to and storage of data). The Advocate General here rejects this blurring of safeguards over access with control over acquisition and retention:

 

“for the Court, ‘the retention of traffic and location data constitutes, in itself … an interference with the fundamental rights to respect for private life and the protection of personal data’. In this regard ‘access to such data is a separate interference’ with those fundamental fights, irrespective of the subsequent use made of it.

 

For the present purposes it is therefore irrelevant that the data protection arrangements for retained data provided for in the German legislation (a) provide effective safeguards to protect those data; (b) place rigorous and effective limits on access conditions, restricting the circle of people who can access the data; and (c) allow the retained data to be used solely for the purposes of investigating serious offences and preventing specific risks to life or a person’s freedom or to the security of the state.

 

The truly decisive element is that, … , the retention obligation at issue is not in itself subject to any specific conditions.” (paras 74-76)

 

Limited retention periods constitute another such safeguard; as the German Government argued in Spacenet, it means that less detailed profiles might be drawn – and in this seems similar to the approach of the Advocate General in HK v Prokuratuur (para 82). While the Court agreed that the period of data retention was a relevant factor in determining the severity of the intrusion, however, it took the view that traffic and location data are generally sensitive because they allow for far-reaching conclusions about private life and that therefore should only be permitted in relation to serious crime (and presumably the protection of national security).  The Advocate General noted in Spacenet that a limited retention period cannot justify a general retention requirement (in relation to crime) (para 66). Moreover, the time period must be considered alongside the quantity of data retained and the techniques available for analysis (Spacenet, para 70).

 

While acquisition, storage and access of data constitute different infringements (and real-time access may give rise to different levels of intrusion from analysis of historic data), there are questions about the links between them. If retention may be justified only for serious crime, presumably access is likewise limited (the Court did not discuss this point in Ministerio Fiscal). This link was discussed in VD and SR. The legislation permitted access to existing records, but did not provide a basis for storage in the first instance. While the French Government argued that the market manipulation legislation implicitly allowed for data retention, the Advocate General argued that these existing records “can only be ‘lawfully existing records’, that is to say those compiled in accordance with Directive 2002/58” (VD and SR, para 62, emphasis in original).

This makes clear that matters pertaining to communications confidentiality are not easily to be displaced. In any event, even if such ‘implicit authorisation’ were to be accepted, “such retention would be subject to the same conditions as would necessarily apply if it were based on any other EU legislative provision”. That is, all EU legislation must comply with the requirements of the EU Charter and the Court’s interpretation of the requirements of Article 7 and 8, arising in the context of the e-Privacy Directive, do not apply to Article 7 and 8 only in the context of that directive but more generally. This recognition is important given the increasing acquisition of data by the private sector and its sharing with the public sector with the aim of delivery of public services of all kinds. For this reason, the requirement of approval of access requests by an independent body (seen also in GD in the context of the e-Privacy Directive) also arose in relation to the insider dealing and market manipulation legislation (para 95).  We might see in this the beginnings of a general approach to constraining state surveillance activities; it will be interesting to see the extent to which the Court pulls through concerns about profiling from this group of cases through to, for example, PNR.  There is a new reference pending challenging the broad nature of PNR data collected in Directive 2016/681/EU (Ligue des droits humans (Case C-817/19) – the hearing for this case is discussed here). The next question is where the boundary is between concerns about profiling in the context of national security and combatting crime, and profiling to support data-driven public service delivery more generally. This distinction does not yet seem to have been considered.

 

Barnard & Peers: chapter 9

JHA4: chapter II:7

Photo credit: EFF-Graphics, via Wikicommons