Home Posts tagged "CJEU"

To Forget, But Not Forgive: Why the CJEU’s Latest Ruling on Google and the ‘Right to Be Forgotten’ is Not at All a Win for US Tech Giants

Published on November 29, 2019        Author: 


Google has recently triumphed in the fight against a worldwide application of the European “right to be forgotten” following the European Court of Justice’s ruling that Google does not have to take down search results revealing sensitive personal information of EU citizens worldwide, rejecting demands by the French Data Protection Authority. The long anticipated judgment by Europe’s top Court in Google v CNIL, delivered on 24th September 2019, was a test of the ‘right to be forgotten’, which allows EU citizens to request, among other things, the removal of search engine results that reveal their personal information. This right is now explicitly recognised in Article 17 of the influential EU’s General Data Protection Regulation (GDPR).

The ruling has been welcomed by US tech giants as an iconic curb of what they see as a ‘European overreach’- extension of its laws beyond borders.  However, not many have noticed that the Court intentionally left a glaring loophole – an opportunity for EU countries to force worldwide de-listing if they deem so fit. In other words, EU countries could still compel Google to de-list beyond Europe, and this decision comes as no surprise in light of the broader context of EU’s pushback against US tech giants.

In the wake of Edward Snowden’s 2013 mass-surveillance revelations about US spying on ordinary citizens and world leaders alike, Europe’s top Court demonstrated leadership by taking a hard line stance on the enforcement of data privacy law, even against other EU bodies. Although many have perceived the latest judgment as a restraint on the Court’s expansive interpretation of EU law, the CJEU  has in fact continued its hard line data privacy crusade with this judgment, which has significant implications for data privacy law, US tech companies, and Internet users. Read the rest of this entry…


CETA Opinion – Setting Conditions for the Future of ISDS

Published on June 5, 2019        Author:  and

The April 2019 New York UNCITRAL Meeting of Working Group III did not discuss the then forthcoming Opinion 1/17 (CETA Opinion) on the compatibility of CETA’s investment court system with EU law. For some the dangers this Opinion could pose to ISDS were altogether non-existent – the Court of Justice of the European Union (CJEU) might as well have considered ISDS in CETA as incompatible with EU law. To others ISDS reform negotiations without the EU, and probably without its Member States, might have seemed a more appealing prospect. The CETA Opinion was rendered on 30 April 2019 and confirmed that the treaty’s investment court system is compatible with EU law. Reaction to it has been immediate, but the real consequences of this (probably explosive or even implosive) opinion will take time to absorb, and a lot of in-depth analysis will certainly follow.

In the past years the CJEU was seemingly headed down a narrow one-way street: its Opinions on a Patent Court, the EU accession to the ECHR or even the Achmea Judgement questioned the participation of the EU and its Member States in international dispute settlement placed outside the control of the EU judicial system. With the CETA Opinion the Court took a U-turn out of the one-way street, back into the path of international dispute settlement. But as the Court managed to turn – and immense pressure was brought to bear – it drafted the conditions for the new multilateral court system that the EU is currently pursuing in international fora. In the remainder of this short contribution we will not canvass the possible contradictions between the Opinion and previous CJEU decisions – although there might be some. We focus on the future instead. In light of the EU’s role as a major investment treaty negotiator and its push for the creation of an MIC, we ask two questions: what this Opinion might mean for the future of ISDS and what open questions remain.

  1. Conditions for the Future of ISDS

Although the CJEU only dealt with the narrow question of whether CETA’s investment court system is compatible with EU primary law, its Opinion will likely have consequences well beyond this context, including notably in relation to a future Multilateral Investment Court (MIC). When the CJEU was deciding, the MIC was the invisible elephant in the room: first, because in CETA the EU commits to pursuing the establishment of an MIC; second, because the European Commission in its contributions to UNCITRAL’s WGIII promotes this option as at least at this time the only possible future for ISDS involving the EU. Read the rest of this entry…

Filed under: EJIL Analysis
Tags: ,

The Brexit Bill and the Law of Treaties

Published on May 4, 2017        Author: 

As has been widely reported in the media (e.g. The Guardian, the BBC), the House of Lords reached two main legal conclusions in its March 2017 report on Brexit and the EU budget:

  1. Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments, unless a withdrawal agreement is concluded which resolves this issue.(para. 135).
  2. The jurisdiction of the CJEU over the UK would also come to an end when the EU Treaties ceased to have effect. Outstanding payments could not, therefore, be enforced against the UK in the CJEU. (para. 133).

The UK government appears to have adopted a similar position on the Brexit bill as the House of Lords. The German newspaper Frankfurter Allgemeine Zeitung published an account of a ‘disastrous Brexit dinner’ at the end of April 2017 between UK Prime Minister Theresa May and Commission President Jean-Claude Juncker in which PM May reportedly argued that the UK does not owe anything to the EU upon its departure. The fact that this dinner conversation was leaked led to strong criticism, particularly in the UK as the campaign for the general election in June is currently underway (see for example here and here).

On 3 May 2017, the UK’s Brexit Secretary David Davis in a TV interview emphasized that he had not seen any official figure of the EU’s demands, and left open room for compromise:

[The UK] have said we will meet our international obligations,  but there will be our international obligations including assets and liabilities and there will be the ones that are correct in law, not just the ones the Commission want.

However, he indicated that the UK would not pay €100 billion upon leaving the EU.

The Commission’s draft negotiating directives for Article 50 negotiations with the UK, published later on the same day, emphasize the need for a ‘single financial settlement’ of the UK’s financial obligations as a member ‘in full’ – referring to it as a ‘settling of accounts’, rather than ‘punishment’. In February, the EU Commission claimed that the UK owes the EU around €60 billion as a result of its EU membership since 1973 Read the rest of this entry…

Tags: , ,