Chapter 2 - European Union Institutions

Question 1

What are the key articles of the CFREU?

Answer 1

-Article 7 - Respect for private and family life
-Article 8 - Protection of personal data
-Article 11 - Freedom of Expression
-Article 52(1) - limitation/ interference

-Article 41 - Right to good administration (reasonable time handled by institutions)

Question 2

What is the European Union Withdrawal Act (EUWA) 2018?

Answer 2

-Prevents the courts from disapplying UK national laws on basis of Charter after exit.
-States no future development of Charter will be part of UK domestic law.

-Charter will be highly relevant for interpretation of UK domestic law (result of UK incorporation)

Question 3

What is the significance of the Lisbon Treaty?

Answer 3

-Elevated Charter to legal status
-Has given overriding influence of EU law over national policy & legislation

Question 4

What are the key EU institutions?

Answer 4

-The Council of European Union
-European Parliament
-European Commission
-European Council
-Court of Justice of European Union (CJEU)

Others set out in Article 13 of EU Treaty:
-European Central Bank
-Court of Auditors

Question 5

How does the Lisbon Treaty define the European Parliament’s responsibilities?

Answer 5

-Shall with the Council exercise legislative & budgetary functions
-Exercise functions of political control & consultation as laid out in treaties
-Shall elect the President of the Commission

Question 6

What is the European Parliament?

Answer 6

-The only European Institution whose members directly elected by EU citizens (persuasive force)

-Responsibilities -> legislative development / supervisory oversight of other institutions / democratic representation / development of budget

-Following Lisbon Treaty no MS is allowed mroe than 96 MEPs & elections held every 5 years / sit in Europe wide political groups not national blocs.

Question 7

The European Parliament’s Legislative Power

Answer 7

-Cannot propose new legislation of its own accord but call upon Commission to submit legislative proposal to the Council of EU

-May also invite Commission & Council to consider amending existing policies / develop new ones

-Shares its legislative power with Council of EU - 3 procedures

Question 8

What are the 3 procedures of the legislative process?

Answer 8

(1) Ordinary procedure - both parliament & Council must agree to legislation (cannot be adopted if either oppose)

(2) Consultation procedure - The Counncil must consult Parliament but Council is not bound by Parliament’s opinion - Under this procedure the Council alone have legislative power

(3) Consent procedure - For particularly important decisions (e.g., EU enlargement) Parliament’s consent is required

Question 9

What are some powers that the Parliament have?

Answer 9

-Democratic & political controls over the other EU institutions (enjoy power to censure Commission including ability to force enter College of Commissioners to resign)

-The Commission must submit to regularl reports to Parliament for scrutiny

-Parliament shares authority with Council to determine the EU budget & influence EU spending - both must adhere to annual spending limits in multiannual financial perspective

Question 10

How is the parliament’s work divided?

Answer 10

(1) Preparation for the plenary session by MEPs - where Commission has proposed legislative text then MEP will be appointed to prepare report on text -> report is then debated/ amended in Committee before scrutinised by political groups then submitted to Parliament in plenary session

(2) In Plenary session -> political groups may propose amendments before voting on proposed legislation & report prepapred by committee -> No member can be forced to vote in particular way. Once adapted, Parliament adopts its position.

-This process is repeared 1x-2x depending on procedure & agreement reached with Council.

-Under Lisbon Treaty -> Parliament’s voting procedure from absolute majority to simple majority

Question 11

What is the European Parliament’s role in relation to Data Protection?

Answer 11

-Lisbon Treaty enshrines the universal right to protection of PD in law & requires relevant legislation to be adopted under legislative procedure

-This guarantees European Parliament’s influence on DP.
-Parliament’s role in legislative process means it has the greatest impact on DP/ privacy issues in EU

-Has been a vocal advocate to right of privacy & takes more protective stance than other institutions -> emerged during legislative process for reform of European DP rules - e..g., adoption of GDPR & LED

Question 12

What role does the Lisbon Treaty give to the European Council?

Answer 12

-Institutional status
-Define general political directions & priorities
-NOT exercise legislative functions

(Do not get confused with the Council of the European Union/ The Council)

Question 13

History of European Council

Answer 13

-Informal body in 1974
-Did not gain formal status until Treaty of Maastricht 1992 -> established it as a forum where heads of state/governments could discuss issues affecting community
-treaty defined the European Council’s role as providing the EU with general political direction and prioriti

Question 14

The European Parliament in Practice

Answer 14

-Today 27 heads of each 27 member states & president of Commission - meet 4x a year to define EU priorities/ set political direction for EU

-Decisions usually made by consensus - treaties may provide alternative mechanisms it needed

-Under Lisbon Treaty European Council president elected by qualified majority for 2 and half year term - only renewable once

-President’s term can be ended in evident of impediment/ serious misconduct

Question 15

What is the function of the Council of the European Union? (The Council)

Answer 15

-Do not get confused with the European Council
-Established by treaties of 1950s which laid foundations of EU

-Role in both political and legislative decisions
-Co-legislator with European Parliament -> both develop legislation for EU
-Council has power to amend proposal before it is adopted

-Acts of Council can be regulations/ directives/ recommendations/ opinions etc

-Following adoption of Lisbon Treaty, Article 9C of EU Treaty states C & EP should exercise legislative & budgetary functions. Council shall carry out policymaking/ coordinating functions

Question 16

How does the Council of EU function?

Answer 16

-Council meetings attended by 1 minister from each of 27 MS.
-Ministers have power to commit their governments to Council decision

-Council is important mouthpiece for national interests of MS

-Council previously criticsed for being undemocratic/ lacking transparency -> Lisbon Treaty addresses criticism by stating insittutions should conduct work as openly as possible (Council meetings for legislation to be held in public)

-10 Council configurations - General Affairs, Foreign Affairs, Economic & Financial Affairs, Justice and Home affairs, Employment etc

Question 16

What is the history of the European Commission?

Answer 16

-Single Commission created in 1965
-Executive bodies of European Coal & Steel Community, European Economic Community & European Atomic Energy Community MERGED.

Question 17

What is the function of the European Commission?

Answer 17

-The executive body of the European Union
-Commission implements EU’s decisions & policies
-Guardian of treaties/ MS/ natural & legal persons
-Union legislative acts may ONLY be adopted on Commission proposal

-Article 9D, Paragraph 1 of EU Treaty:
(1) Commission shall promote interest of Union
(2) Ensure application of Treaties & by institutions (admin/executive/management)
(3) Oversee application of Union law under CJEU

Question 18

What Articles of the TFEU grant Commission power & which powers?

Answer 18

-Article 226 & Article 228 -> grant power to take legal & administrative action
-Also power to impose fine against MS that has failed to comply with law

-Article 230 & Article 232 provide necessary supervisory powers over other institutions

Question 19

How does the European Commission function?

Answer 19

-Each 27 MS has its own commissioner

-Commissioners are independent & owe no allegiance to country that nominates them / MS not expected to influence

-Commissioner not appointed to office without Parliament’s approval (this power introduces element of democratic accountability although indirect)

Question 20

What is the European Commission’s role in relation to DP?

Answer 20

-Commission has historically been most active institution in DP
-Responsible for original 1990 porposoal for Council Directive concerning protection of individuals in relation to PD processing -> which then led to GDPR & LED

-Has the power to adopt adequacy findings by non-member states (now UK) in accordance with EU standards

-Power to enforce compliance with Charter -> can ensure high level of protection for individuals’ rights of DP & privacy

Question 21

What treaty created the CJEU?

Answer 21

-The Treaty of Paris 1951 - CJEU set up to implement legal framework of European Steel and Coal Community

Question 22

What treaty created the European Community & why is this related to CJEU?

Answer 22

-The Treaty of Rome 1957 set up the European Community -> the CJEU became the community’s court

Question 23

What is the significance of the Treaty of Maastricht and when?

Answer 23

-1992
-CJEU’s powers were expanded upon the creation of EU under Maastricht Treaty

Question 24

What is the significance of Treaty of Lisbon in relation to CJEU?

Answer 24

-Extended the jurisdiction of Court of Justice & renamed it Court of Justice of European Union (CJEU)

Question 25

What is the function of the CJEU?

Answer 25

-The judicial body of EU that makes decisions on EU law issues -Enforces European decisions - actions taken by Commission against MS / action taken by individual to enforce rights under EU law -IS NOT the European Court of Human Rights (which is not linked to EU institutions & oversees HR laws in Europe & non MS signatories to ECHR)

Question 26

What is the structure of the CJEU?

Answer 26

-Split into (1) Court of Jusice (ECJ) (2) General Court (renamed Court of First Instance/ CFI) -Composed of 27 judges & each appointed by governments of MS for 6 year terms -Judges elect president for term of 3 years -ECJ has 8 advocates to assist ECJ by giving nonbinding reaosnable opinions

Question 27

What issues does the ECJ jurisdiction hear?

Answer 27

-Cases brought by Commission / MS against a MS failure to fulfil treaty obligations -Actions brought by MS/ EU institution/ natural or legal persons to review legality of acts of institutions AND failure to act -Interpretation or validity of EU law -Opinions on compatibility of EU international agreements with treaties

Question 28

What is the relation between Council of European Union, European Parliament & European Commission?

Answer 28

-European Commission proposes legislation to Parliament & Council -European Parliament supervises European Commission -Council of EU appoints European Commission -Both European Parliament & Council of EU co-decide on EU law

Question 29

What is the role of CJEU in relation to DP?

Answer 29

-ECJ been involved in some DP cases / preliminary ruling on issues of interpretation of EU law -Actions of Commission against MS for failure to fulfil treaty obligations

Question 30

Examples of ECJ decisions in shaping DP law

Answer 30

(1) Google Spain case (2) Digital Rights Ireland Case (3) ANAF Case (4) Weltimmo case (5) Schrems ruling (6) Joined cases of Tele2 Sverige and Tom Watson of Dec 2016 (6) Schrems ruling II

Question 31

What was the significance of the Google Spain case?

Answer 31

-On the right to be forgotten -ECJ held that where individuals OBJECT/ circumstances met -> search engines MUST REMOVE the list of results displayed following a search made on a persons name / links to webpages published by 3rd parties / results that contain info relating to that person -Case also dealt with applicability of EU data protection law in respect of controllers that have establishment in EU

Question 32

What is the significance of the Digital Rights Ireland Case?

Answer 32

-ECJ examined whether Data Retention Directive was valid in light of Article 7,8 and 11 of Charter - led to the invalidation of the Data Retention Directive, emphasizing the need for proportionality and necessity in data retention law

Question 33

What is the significance of the ANAF Case?

Answer 33

-ECJ rules PD may not be transferred between public administrative bodies of a MS without individuals being informed of transfer

Question 34

What is the significance of the Weltimmo Case?

Answer 34

-ECJ intervened to clarify how DP law applies in cross-border situations in EU -ECJ took view that even minimal activities in a MS can trigger application of that MS's DP law

Question 35

What is the significance of the Schrems ruling & when?

Answer 35

-Schrems ruling of 2015 -ECJ invalidated Commission's decision that Safe Harbor was adequate as a framework to legitimise international data transfers to US.

Question 36

What is the significance of the Tele2 Sverige and Tom Watson of Dec 2016 Cases?

Answer 36

-ECJ ruled the general and indiscriminate retention of data EVEN under national legislation for crime fighting purposes was INCOMPATIBLE with ePrivacy Directive 2002 when read in light of Charter (Particularly Articles 7,8,11 and 52(1) of Charter)

Question 37

What is the significance of the Schrems II ruling and when?

Answer 37

-Schrems II ruling of July 2020 -ECJ declared invalid Privacy Shield (which was the framework that replaced Safe Harbor to legitimise international data transfers to US). -ECJ also stated that European Commission Decision 2010 on standard contractual clauses (SCCs) for transfer of PD from EU controllers to processors in third countries was valid but subject to case to case assessment

Question 37

When was the European Court of Human Rights established?

Answer 37

-International court founded in 1959 to oversee ECHR -Sits in Strasbourg

Question 38

What is the purpose/ function of European Court of Human Rights? (ECtHr)

Answer 38

-NOT an institution of the EU -International court that protects fundamental rights of people living in contracting states -Oversees ECHR -Examines compliants by states & indviduals -Delivers binding and final judgements & concerned countries are obliged to comply with them -If ECtHR finds decision taken by legal or other authority conflicts with ECHR obligations -> ECtHR must afford just satifsaction to injured party

Question 39

What is the working structure of the ECtHR?

Answer 39

-A number of judges equal to members of Council of Europe that have ratified ECHR -ECtHR do not represent any state/ sit in individual capacity -Chamber of 7 judges each case / has its own rules and procedures -Expenses of Court covered by Council of Europe

Question 40

What are the rights of the ECHR that the ECtHR must ensure are respected?

Answer 40

(1) Right to life (2) Right to a fair hearing in civil/ criminal (3) Right to respect for private and family life (4) Freedom of expression (5) Freedom of thought, conscience & religion (6) Right to an effective remedy (7) Right to peaceful enjoyment of possessions (8) Right to vote and stand for election

Question 41

What is the role of the ECtHR in relation to DP?

Answer 41

-Article 8 of ECHR protects right to respect for private and family life but not specifically DP -ECtHR has pointed out use of modern electronic techniques to process PD should be kept under control to ensure Article 8 right safeguarded -ECtHR has been active in DP

Question 42

What are some DP related cases - ECtHR?

Answer 42

Three French cases in 2009 -> Judgements in Bouchacourt v France, Garde! v France & M.B. v. France -Court reaffirmed the fundamental role of protection of PD -Held that automated data processing for police purposes/ applicants' inclusion in national police database sex offenders - NOT contrary to Article 8 ECHR -2012 - MM v UK -Court held that although need for data record for criminal matters - indiscriminate & open-ended collection of criminal record data is unlikely to comply with Article 8 -Gaskin v United Kingdom 1989 - ECtHR said restriction of applicant's access to personal file was contrary to Article 8 ECHR. -Haralambie v Romania - ECtHR concluded Article 8 violated by obstacles placed in applicant's way of accessing secret service file on him drawn up in Communist rule days.

Question 43

What was the landmark ECtHR case in relatio to DP - UK Act?

Answer 43

-Regarding the UK surveillance regine & its compliance with the Convention -Grand chamber of ECtHR upheld Chamber ruling that aspects of UK surveillance regime under Regulation of Investigatory Powers Act 2000 (RIPA) did NOT comply with Articles 8 & 10 of Convention. -The ruling held bulk interception of communications under s8(4) of RIPA & Chapter II RIPA for obtaining communication data did NOT comply with Article 8 & 10 of ECHR. -Ruling placed specific guidance on safeguards when accessing confidential journalistic material through bulk interception. -UK will need to ensure bulk interception regime established under IPA 2016 complies with general guidance on bulk interception regines set ount in judgement of Grand Chamber.