Abstract
This chapter links the object of protection and the challenges posed by the internet, on the one hand, to the contributions of the various actors, on the other hand.
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Notes
- 1.
Wording taken from Article 5(3) TEU (the principle of subsidiarity).
- 2.
Chapter 9 deals with the external aspects of Article 16 TFEU, in the international context.
- 3.
Joseph Weiler, Do the new clothes have an emperor? and other essays on European integration, Cambridge University Press, 1999, at viii.
- 4.
Because of the limited scope of the Charter, as will be further explained in Chap. 5.
- 5.
E.g., in Articles 2, 3 and 21 TEU.
- 6.
See Chap. 2.
- 7.
- 8.
Under Article 28 of Directive 95/46.
- 9.
See also Chap. 6.
- 10.
Further read: Paul Craig, “Integration, Democracy and Legitimacy”, in: Paul Craig and Grainne de Búrca (eds), The evolution of EU Law (second edition), Oxford University Press, 2011.
- 11.
Often referred to as democratic deficit. See, e.g.: Giandomenico Majone, “Europe’s ‘Democratic Deficit’: The Question of Standards”, European Law Journal, Vol. 4, No.1, pp. 5–28, March 1998.
- 12.
- 13.
Koen Lenaerts and Piet van Nuffel, European Union Law, (Third Edition), Sweet & Maxwell, 2010, at 125.
- 14.
The relation with a third category of main interlocutors – third countries and international organisations – will be discussed in Chap. 9 on the external relations of the Union.
- 15.
The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press, 1999, e.g at 80.
- 16.
Paul Craig and Grainne de Burca, EU Law: Text, Cases and Material (fifth edition), Oxford University Press, 2011, at 223–231.
- 17.
- 18.
- 19.
- 20.
Articles 3, 4 and 6 TFEU.
- 21.
Koen Lenaerts and Piet van Nuffel, European Union Law, Third edition, Sweet & Maxwell, 2010, at 113, 124–130; Christiaan Timmermans: ECJ doctrines on Competences, in: Loïc Azoulai (ed.), The Question of Competence in the European Union, Oxford University Press, 2014.
- 22.
See European Council, Presidency conclusions – Laeken, 14 and 15 December 2001, incl. Annex I Laeken Declaration on the future of the European Union, at 21–22 The Laeken declaration gave impetus to the inclusion of the catalogues of competences.
- 23.
Christiaan Timmermans: ECJ doctrines on Competences, IN: The Question of Competence in the European Union, Edited by Loïc Azoulai, Oxford University Press, 2014.
- 24.
Christiaan Timmermans: ECJ doctrines on Competences, IN: The Question of Competence in the European Union, Edited by Loïc Azoulai, Oxford University Press, 2014, at 159.
- 25.
These instruments can be limited in time or repealed by the legislator. Member States competence also revives where an EU instrument is annulled by the CJEU, as was the case with Directive 2006/24 (data retention) in Joined cases C-293/12 and C-594/12, Digital Rights Ireland (C-293/12) and Seitlinger (C-594/12), EU:C:2014:238
- 26.
Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet & Maxwell, 2010, at 125.
- 27.
. This issue must not be confused with powers given to Member States in an EU act to adopt additional rules. See on this: European Data Protection Supervisor, Opinion of 7 March 2012 on the data protection reform package, at II.2.a, on the relation between EU law and national law.
- 28.
Joined cases C-468/10 and C-469/10, ASNEF and FECEMD, EU:C:2011:777, relating to Article 7(f) of Directive 95/46.
- 29.
Article 99 (2) GDPR.
- 30.
Article 3(2) TFEU reads as follows: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.” See further Chap. 9.
- 31.
Mainly subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8/1.
- 32.
Italics added by author.
- 33.
In principle. As explained in Chap. 6 certain elements of data protection should be left to the Member States.
- 34.
Further read: H. Hijmans and A. Scirocco, “Shortcomings in EU data protection in the Third and the Second Pillars. Can the Lisbon Treaty be expected to help?”, CMLR, 46, pp. 1485–1525, 2009.
- 35.
Article 1(2) of Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, OJ L 350/60.
- 36.
The GDPR and Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119/89.
- 37.
- 38.
Chapter 6 of this book will explain this further.
- 39.
Chapter VI of the GDPR contains more precise conditions, leaving significantly less room for maoeuvre for theMember States.
- 40.
Recital (62) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281/31, as most recently confirmed in Case C-362/14, Schrems, EU:C:2015:650, at 42. See Chap. 7, Sects. 7.1 and 7.2.
- 41.
- 42.
- 43.
E.g., the Annual Report of the Commission 2013 on subsidiarity and proportionality (COM(2014), 506 final), presented in the context of the Smart Regulation exercise. See in the same sense, EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Búrca, 2011, at 168–169.
- 44.
EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Búrca, 2011, at 169.
- 45.
This reads: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.
- 46.
“It must be considered whether the objective of the proposed action could be better achieved at EU level”, Case C-508/13, Estonia v European Parliament and Council, EU:C:2015:403, at 45.
- 47.
Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, annexed to the Lisbon Treaty, in particular Articles 6 and 7, which include the ‘yellow card’ procedure.
- 48.
See Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition), Sweet & Maxwell, 2010, at 7–028.
- 49.
Paragraph in the Explanatory Memorandum on subsidiarity of the Commission Proposal for a General Data Protection Regulation (COM (2012) 11 final). The Commission combines the need for protection under Article 8 Charter with the increase of cross-border data transfers.
- 50.
See Peter Blume, “The Public Sector and the Forthcoming EU Data Protection Regulation”, European Data Protection Law Review, 1, pp. 32–38, 2015.
- 51.
Article 2a of Preparation of a general approach, Note from Presidency to Council, 11 June 2015, 9565/15. The input of the Council finally resulted in Article 6(2) GDPR, leaving some leeway for the Member States.
- 52.
According to Craig & de Búrca this distinction is blurred and both principles are used together, EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca, 2011, at 168–169.
- 53.
This is proportionality as it is meant in this section. The principle is also used in other contexts, e.g., in the context of the limitation of fundamental rights.
- 54.
Particularly, the discussions relating to the risk-based approach that should replace prescriptive provisions. See, e.g.: Statement of the Article 29 Working Party on the role of a risk-based approach in data protection legal frameworks, Adopted on 30 May 2014, available on: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp218_en.pdf.
- 55.
The implications of the proportionality test on specific EU actions will be discussed in several parts of this book.
- 56.
And, irrelevant in the context of this book, the equality of Member States.
- 57.
Conclusions of the General Affairs Council of 16 December 2014, Council Doc. 16936/14, at 21. See also the editorial comments in CMLR 2015: “Safeguarding EU values in the Member States – Is something finally happening?”, CMLR, 52, pp. 619–628.
- 58.
Case C-208/09, Sayn-Wittgenstein, EU:C:2010:806, at 83.
- 59.
The person concerned was a Fürstin, princess in English. The registry did not enter her as princess, but just with her normal name.
- 60.
Albeit only in a subsidiary way (ruling, at 92).
- 61.
E.g., in Article 57 GDPR.
- 62.
- 63.
Armin von Bogdandy and Stephan Schill, “Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty”, CMLR, 48, pp. 1417–1453, at 1436.
- 64.
Case C-208/09, Sayn-Wittgenstein, EU:C:2010:806.
- 65.
See on this subject also: Article 29 Data Protection Working Party, Document on surveillance of electronic communications for intelligence and national security purposes, Adopted on 5 December 2014, WP 228.
- 66.
Under Article 75 TFEU the European Parliament and the Council “shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities”.
- 67.
Also because texts are not always clear. E.g., Article 3(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ L 178/1, stating: “public security, including the safeguarding of national security and defence”.
- 68.
Criterion used by the CJEU in Case C-300/11, ZZ, EU:C:2013:363, in relation to Article 30 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending various EU instruments, OJ L 158/77.
- 69.
OJ L 158/77
- 70.
Case C-145/09, Tsakouridis, EU:C:2010:708, at 43.
- 71.
Case C-145/09, Tsakouridis, EU:C:2010:708, at 44. The CJEU also noted that “objectives such as the fight against crime in connection with dealing in narcotics as part of an organised group are necessarily excluded from that concept”, at 45.
- 72.
See in this sense, the annotation on case C-348/09 by Loïc Azoulai and Stephen Coutts, “Restricting Union citizens’ residence rights on grounds of public security. Where Union citizenship and the AFSJ meet: P.I.”, CMLR, 50, pp. 553–570.
- 73.
Case C-348/09, P.I., EU:C:2012:300, at 28.
- 74.
This requirement was mentioned in Case C-145/09, Tsakouridis, EU:C:2010:708, at 47. However, in P.I. the CJEU seems to drop this.
- 75.
Case C-348/09, P.I., EU:C:2012:300, at 21.
- 76.
Case C-348/09, P.I., EU:C:2012:300, at 23.
- 77.
In particular, the sexual exploitation of children. Case C-348/09, P.I., EU:C:2012:300, at 25, and the annotation on case C-348/09 by Loïc Azoulai and Stephen Coutts, “Restricting Union citizens’ residence rights on grounds of public security. Where Union citizenship and the AFSJ meet: P.I”, CMLR 50, pp. 553–570.
- 78.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending various EU instruments, OJ L 158/77.
- 79.
Case C-300/11, ZZ, EU:C:2013:363. Further read: case note by Nik de Boer, “Secret evidence and due process rights under EU law: ZZ”, CMLR 51, pp. 1235–1262.
- 80.
- 81.
If only because of the wording of Article 30(2) of Directive 2004/38: “The persons concerned shall be informed […] of the […] public security […] grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.”
- 82.
Case C-300/11, ZZ, EU:C:2013:363, at 66.
- 83.
Case C-300/11, ZZ, EU:C:2013:363, at 38.
- 84.
Pre-Lisbon case law, so before the inclusion of a national security exception in the Treaties.
- 85.
E.g., Case C-387/05, Commission v Italy, EU:C:2009:781, at 55.
- 86.
The reference to Article 39 TEU does not apply because a national agency is not part of the Common Foreign and Security Policy.
- 87.
See Article 3(2) of Directive 95/46 (mentioning State security) and Article 2(1) GDPR, as explained in recital 16 thereof (mentioning national security).
- 88.
See on this, European Data Protection Supervisor, Opinion of 20 February 2014 on the Communication from the Commission to the European Parliament and the Council on “Rebuilding Trust in EU-US Data Flows” and on the Communication from the Commission to the European Parliament and the Council on “the Functioning of the Safe Harbour from the Perspective of EU Citizens and Companies Established in the EU”, at 18.
- 89.
In this sense also, European Data Protection Supervisor, Opinion of 20 February 2014 on the Communication from the Commission to the European Parliament and the Council on “Rebuilding Trust in EU-US Data Flows” and on the Communication from the Commission to the European Parliament and the Council on “the Functioning of the Safe Harbour from the Perspective of EU Citizens and Companies Established in the EU”, at 19.
- 90.
Case C-362/14, Schrems, EU:C:2015:650, e.g. at 87–88.
- 91.
An obvious example is the ‘Five Eyes’ network, an intelligence alliance comprising Australia, Canada, New Zealand, the United Kingdom, and the United States.
- 92.
Joel Reidenberg, The Data Surveillance State in the United States and Europe, Fordham Law Legal Studies Research Paper No. 2349269, (Princeton University – Center for Information Technology Policy/Fordham University School of Law), Wake Forest Law Review, November 2013. See more in general: Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA and the Surveillance State, Metropolitan Books/Henry Holt (NY), 2014.
- 93.
See also Chap. 5, Sect. 5.12 and Chap. 6, Sect. 6.7 of this book. The freedom of expression and information in Article 11 Charter also includes pluralism of the media. Further read: K. Irion and P. Valcke, “Cultural diversity in the digital age: EU competences, policies and regulations for diverse audiovisual and online content” in: E. Psychogiopoulou (ed.), Cultural Governance and the European Union, Houndmills and Palgrave Macmillan, 2014.
- 94.
Case C-73/07, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (Satamedia) EU:C:2008:727, at 26–28.
- 95.
There are a number of exceptions wherein EU bodies have enforcement powers. An important exception is laid down in Article 105 TFEU, which provides that the Commission shall ensure the application of the principles of EU competition law. Also Article 127(6) TFEU provides that the Council may, by unanimity, confer specific tasks of prudential supervision on the ECB.
- 96.
Koen Lenaerts and Piet van Nuffel, European Union Law, Third edition, Sweet & Maxwell, 2010, at 17–002.
- 97.
See on this EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca 2011, Oxford University Press Chapter 8, and in particular at 220 where the authors speak of “practical possibility” as a species of effectiveness.
- 98.
Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet & Maxwell, 2010, at 17–002.
- 99.
Article 4(3) TEU.
- 100.
Case 6/69, Commission v France, EU:C:1969:68, at 16.
- 101.
Article 13(2) TEU.
- 102.
Further read: Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet & Maxwell, 2010, at 7-044–7-049.
- 103.
Craig in EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, at 337.
- 104.
- 105.
Article 28(6) of Directive 95/46.
- 106.
Craig in EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, at 3.
- 107.
Anand Menon and Stephen Weatherill, “Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007)”, LSE law, society and economy working papers No. 13-2007, at 23.
- 108.
Case C-617/10, Åkerberg Fransson, EU:C:2013:280.
- 109.
Joined cases C-411/10 and C-493/10, N.S., and M.E. and Others, EU:C:2011:865.
- 110.
The ruling, at 64, referred to implementing EU law by the Member States under Article 51 Charter, but Åkerberg Fransson gives a wide interpretation to this article 51.
- 111.
At 77 of the ruling.
- 112.
At 86 and 104 of the ruling.
- 113.
This argument is made in relation to EU citizenship, in: Armin von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, “Reverse Solange–Protecting the essence of fundamental rights against EU Member States”, CMLR 49, pp. 489–519.
- 114.
As laid down in Article 17 TFEU.
- 115.
This procedure was described as an objective method for ensuring Member State compliance of EU law, not a procedure providing individuals with a means of address; see: EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca, 2011, at 410.
- 116.
Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, at 415–418.
- 117.
Case C-518/07, Commission v Germany, EU:C:2010:125, Case C-614/10, Commission v Austria, EU:C:2012:631 and Case C-288/12, Commission v Hungary, EU:C:2014:237. See Chap. 7 of this book.
- 118.
Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet & Maxwell, 2010, at 17–005.
- 119.
In this sense: Carol Harlow, “Three Phases in the Evolution of EU Administrative Law”, in: Paul Craig and Grainne de Búrca, The evolution of EU Law (second edition), Oxford University Press, 2011, Chapter 15.
- 120.
Under Articles 101 and 102 TFEU and Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1/1.
- 121.
Under Chapter V and VI of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1/1.
- 122.
Further read: Michelle Everson, Cosimo Monda, and Ellen Vos (eds), EU Agencies in between Institutions and Member States, 2014 (Kluwer Law International). As the title of the book reveals, there is no communis opinio of the place of EU agencies, as part of the EU executive. They are also considered to be hybrid constructions in between the EU and the Member States. See Chap. 7, Sect. 7.8 of this book.
- 123.
The Bundesverfassungsgericht underlined this monopoly as a particular sensitive area that should remain with the national state, see Sect. 4.8 below.
- 124.
Article 87 TFEU.
- 125.
Article 88 TFEU.
- 126.
- 127.
On sanctions, see Article 83 GDPR.
- 128.
As included in Chapter VII GDPR.
- 129.
Case C-93/12, Agrokonsulting-04, EU:C:2013:432, at 35. See also, Koen Lenaerts, Ignace Maselis and Kathleen Gutman, EU Procedural Law, Oxford University Press, 2014, at 4.01 and 4.02.
- 130.
This may better reflect the task of the Member States in determining the procedural conditions for ensuring EU law; see: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, at 220.
- 131.
Starting with Case 33/76, Rewe-Zentralfinanz, EU:C:1976:188.
- 132.
EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, at 220 and the case law mentioned there.
- 133.
Dougan, Remedies and Procedures for enforcing Union Law, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press 2011, at 408.
- 134.
As described in EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, Chapter 8.
- 135.
- 136.
- 137.
See on this: P. Popelier, Europe Clauses’ and Constitutional Strategies in the Face of Multi-Level Governance, Maastricht Journal of European and Comparative Law, 2014, at 300.
- 138.
Craig in “The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press 2011, Chapter 2 on Integration, Democracy and Legitimacy.
- 139.
A. Moravcsik, Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach (pages 473–524), JCMS: Journal of Common Market Studies, Volume 31, Issue 4.
- 140.
Further read: The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press, 1999.
- 141.
Craig submits that not many commentators support the views of Moravcsik.
- 142.
2 BvR 2661/06, 6 July 2009, e.g. at 249.
- 143.
The list of sensitive areas is also relevant for subjects that would qualify as being part of the national identity (as meant in Article 4(2) TEU). It is wider than the subjects mentioned here. Further read: Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48: pp. 1417–1453, at 1435–1436.
- 144.
And – less relevant here – the monopoly of the use of force by the military towards the exterior; at 252 of the ruling. Also, decisions of substantive and formal criminal law are mentioned.
- 145.
E.g. in: Daniel Halberstam and Christoph Möllers, The German Constitutional Court says “Ja zu Deutschland!”, 10 German Law Journal, 1241–1258, 2009, at 241.
- 146.
The third subject where such a claim is made is ultra vires review, referred to below in Sect. 4.13, Mehrdad Payandeh ‘Constitutional review of EU law after Honeywell: Contextualizing the relationship between the German Constitutional Court and the EU Court of Justice’, 48 CMLR, Issue 1, pp. 9–38, 2011.
- 147.
Dougan shows this is not easy, where he explains that the Lisbon Treaty succeeds in terms of effectiveness (“Europe of results”), but not in terms of understanding and acceptance; Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008, at 702.
- 148.
Hereafter simplified to the term of ‘democratic legitimacy’.
- 149.
Without entering into a debate whether the EU primarily unites individuals or Member States; this order is in any event logical in this book since it deals with fundamental rights.
- 150.
Article 20(2) TFEU enumerates a few specific rights of the citizen of the Union, not relevant for his book.
- 151.
Such as remedies before the supervisory authorities for data protection under Article 8(3) Charter and Article 16(2) TFEU.
- 152.
These dimensions are elaborated in different sections of Chap. 5 of the book.
- 153.
See, e.g., the recitals of the TEU: “Desiring to deepen the solidarity between their peoples while respecting their history, their culture and their traditions.”
- 154.
EU citizenship is defined in Article 20(1) TFEU: “Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”
- 155.
This choice is justified by the starting point of the book that the protection of fundamental rights – as a public good – is a primary responsibility of government (on different governmental levels).
- 156.
See on this: Dirk Ehlers (ed.), European Fundamental Rights and Freedoms, De Gruyter Recht Berlin, 2007, at 385.
- 157.
See, e.g.: EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca, 2011, Chapter 23, and Jo Shaw in: The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, Chapter 19.
- 158.
Case C-184/99 Grzelczyk, EU:C:2001:458, at 31.
- 159.
Case C-34/09, Ruiz Zambrano, EU:C:2011:124, at 42. Ruiz Zambrano extended the rights of the EU citizen to situations where citizens did not move between Member States; see: Reverse Solange–Protecting the essence of fundamental rights against EU Member States’, Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, CMLR, 49, Issue 2, pp. 489–519, at 503.
- 160.
Shaw calls this “the fundamental demos/no demos debate”; see: Jo Shaw in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, Chapter 19, at 582. See also Section 11 of this chapter on social legitimacy.
- 161.
These are the rights to vote, to enjoy diplomatic and consular protection and to petition in Article 20(2)(b), (c) and (d) TFEU.
- 162.
Case C-34/09, Ruiz Zambrano, at 42. See: Reverse Solange–Protecting the essence of fundamental rights against EU Member States’, Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, CMLR, 49, Issue 2, pp. 489–519, at 503.
- 163.
See on this: Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, Reverse Solange–Protecting the essence of fundamental rights against EU Member States’, CMLR, 49, Issue 2, pp. 489–519, e.g. at 505–506 and the references to opinions of AG Jacobs therein.
- 164.
Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, Reverse Solange–Protecting the essence of fundamental rights against EU Member States’, CMLR, 49, Issue 2, pp. 489–519, e.g. at 506.
- 165.
In accordance with the principle of subsidiarity, as has been explained in Sect. 4.4 above.
- 166.
Inspired by: Reverse Solange–Protecting the essence of fundamental rights against EU Member States’, Armin Von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj, CMLR, 49, Issue 2, pp. 489–519, e.g. at 507.
- 167.
Views extracted from The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press 1999, at 4, also mentioning some other important moments in EU history. This book predates the Lisbon Treaty of 2009 by 10 years and also predates the Charter being firstly adopted as a non-binding instrument in 2000. The latter two do not change the sense of Weiler’s statement.
- 168.
Martin Shapiro, Comparative Law and Comparative Politics, 53 S. Cal. L. Rev. 537 (1979), Available on: http://scholarship.law.berkeley.edu/facpubs/1170.
- 169.
Alec Stone Sweet, The Court of Justice, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press 2011.
- 170.
A somehow condescending way of describing this phenomenon was used in relation to Case C-518/07, Commission v Germany, on the independence of data protection authorities: a “consciously democracy-repudiating expertocracy”. See annotation by Jiří Zemánek, (2012) 49 CMLR, Issue 5, pp. 1755–1768, at 1756.
- 171.
Although Weiler notes that Coreper was created to make it easier for Member States to swallow European decision-making; see: The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press 1999, at 36. This background could also be an argument that Coreper enhances the legitimacy. See on Coreper also Paul Craig, Institutions, Powers and Institutional Balance, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 45–46. He argues that Coreper strengthened the role of the Council vis-à-vis the Commission.
- 172.
Further read: Paul Craig, Institutions, Powers and Institutional Balance, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 46–49.
- 173.
These theories are sometimes called “neofunctionalism”. Further read: Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011.
- 174.
M. Shapiro states in relation to EU Agencies: “The accountability or democratic deficit problem is almost too obvious to require comment”, M. Shapiro, Independent Agencies, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 117.
- 175.
Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, pp. 15–16.
- 176.
Luuk van Middelaar in the Dutch version of The Passage to Europe: How a Continent Became a Union, Historische Uitgeverij, 2009, at 25.
- 177.
Deirdre Curtin, Challenging executive dominance in European democracy. In C. Joerges & C. Glinski (Eds.), The European crisis and the transformation of transnational governance: authoritarian managerialism versus democratic governance (pp. 203–226), Hart Publishing, 2014. See also Irma Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency? The Case of the Court of Justice of the European Union’ (2015) 31(80) Utrecht Journal of International and European Law, 5, at 6.
- 178.
Joseph Weiler, The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Cambridge University Press, 1999, at 78–79. Of course, one can also claim the opposite, namely that lifting the veto power of each Member State weakens national parliamentary control. Qualified majority voting in the Council should thus be compensated by increasing the powers of the European Parliament. See: Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European Law Journal, Vol. 4, No.1, pp. 5–28, March 1998, at 6.
- 179.
Article 17(7) TEU. It has to be kept in mind that the choice of the European Parliament is limited, since the European Council proposes a candidate. In 2014, a practical way forward enhancing the role of the European Parliament was the choice of the President of the Commission out of the Spitzenkandidaten put forward by the political groups in Parliament, see: Editorial Comment, After the European elections: Parliamentary games and gambles, CMLR, 51: 1047–1056, 2014.
- 180.
Further read: Editorial Comment, A new Commission takes office: On the relevance of Union law and the emergence of constitutional conventions, CMLR, 51: 1571–1578, 2014.
- 181.
Protocol (No. 1) on the role of National Parliaments in the European Union, annexed to the TEU and TFEU.
- 182.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the TEU and TFEU. Further read: Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008 at 657–661; Davor Jančić, “The game of cards: National parliaments in the EU and the future of the early warning mechanism and the political dialogue”, CMLR, 52, 939–975, 2015.
- 183.
Irma Spahiu, ‘Courts: An Effective Venue to Promote Government Transparency? The Case of the Court of Justice of the European Union’ (2015) 31(80) Utrecht Journal of International and European Law, 5.
- 184.
E.g., in Article 11 TEU.
- 185.
- 186.
As explained by Deirdre Curtin, Challenging executive dominance in European democracy. In C. Joerges & C. Glinski (Eds.), The European crisis and the transformation of transnational governance: authoritarian managerialism versus democratic governance (pp. 203–226), Hart Publishing, 2014.
- 187.
Raya Kardasheva, Trilogues in the EU legislature, King’s College London, Department of European and International Studies, Research Paper, 30 April 2012.
- 188.
Chapter 10, Section 10 refers to the trilogue concerning the General Data Protection Regulation.
- 189.
On 26 May 2015, see: http://www.ombudsman.europa.eu/cases/correspondence.faces/en/59978/html.
- 190.
Further read: Koen Lenaerts and Piet van Nuffel, European Union Law, Third edition, Sweet & Maxwell, 2010, Chapter 20. An interesting read is the Lisbon ruling of the Bundesverfassungsgericht (2BvR 2661/06, 6 July 2009, at 276–297). It formulated strong arguments against the level of legitimacy of democracy in the EU, and in particular against the democratic control by the European Parliament, emphasising that the European Parliament does not represent European citizens, but the peoples of the Member States.
- 191.
Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008, at 690.
- 192.
Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 36.
- 193.
Of course, in a democratic system the highest court should not be held accountable. The observation is related to the supposed role the CJEU played in the European integration process. As to the accountability of the Commission, under Article 234 TFEU the European Parliament can adopt a motion of censure requiring the Commission (as a whole) to resign.
- 194.
Bundesverfassungsgericht Germany, ruling of 30 June 2009, 2 BvE 2008, at 276 et seq.
- 195.
This relates to the discussion between Moravcsik and Weiler c.s. whether electoral accountability is a prerequisite for democratic legitimacy (see Sect. 4.8 of this chapter).
- 196.
Wording taken from The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press, 1999, at 80.
- 197.
This is what Majone calls a pure majoritarian or ‘Westminster’ model. See: Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European Law Journal, Vol. 4, No.1, pp. 5–28, March 1998, at 10–11.
- 198.
This does not necessarily mean that these solutions address all concerns. E.g., the German Bundesverfassungsgericht ruled in its ruling on the Lisbon Treaty (30 June 2009, 2 BvE 2008, at 276 et seq.) that control by the European Parliament as such does not result in full democratic legitimacy.
- 199.
The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press, 1999, at 84.
- 200.
Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, pp 28–29 and the overview of literature in footnote 35 of Chap. 2.
- 201.
Article 3(2) TEU.
- 202.
See Micossi in: Stefano Micossi, Gian Luigi Tosato (eds.), Europe in the 21st Century: Perspectives from the Lisbon Treaty, CEPS Studies, 2009.
- 203.
A good example is the letter (in Dutch) of the Dutch Minister of Foreign Affairs to the Dutch Parliament of 19 February 2014, Staat van de Europese Unie 2014 (33887). “The Netherlands is convinced that the time of an
‘ever closer union’ in every possible policy area is behind us.”, see: http://www.economist.com/blogs/charlemagne/2013/06/netherlands-and-eu
- 204.
Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 15.
- 205.
Wording from Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European Law Journal, Vol. 4, No.1, March 1998, at 14.
- 206.
These views are not exclusively German, but were mostly brought forward by German representatives in the Council. See: Update on the General Data Protection Regulation, on http://www.kwm.com/en/de/knowledge/insights/update-on-the-general-data-protection-regulation-20140424.
- 207.
Francesca E. Bignami, Transgovernmental Networks vs. Democracy: The Case of the European Information Privacy Network, Michigan Journal of International Law, Vol. 26, 807–868, 2005, at 858.
- 208.
One could argue that the European Parliament elections in 2014 were dominated by EU issues in a number of Member States, but with the result that Eurosceptic parties won.
- 209.
Further read: Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008.
- 210.
Luuk van Middelaar, 2009, De passage naar Europa. Geschiedenis van een begin (published in English as: The Passage to Europe: How a Continent Became a Union), Historische Uitgeverij, part III.
- 211.
A good example is obviously the preamble of the TEU, where it speaks about continuing the “process of creating an ever closer union among the peoples of Europe”. The ‘closer Union’ is also mentioned in Article 1 TEU.
- 212.
Dougan explains that the Lisbon Treaty succeeds in terms of effectiveness (“Europe of results”), but not in terms of understanding and acceptance; Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008, at 702.
- 213.
Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 22–26.
- 214.
Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008.
- 215.
As explained in Sect. 4.5 above.
- 216.
The exception for national security is a good example.
- 217.
Impact Assessment, Commission Staff Working Paper, SEC (2012) 72 final, at 72. The Commission refers to case 9/56, Meroni, EU:C:1958:7.
- 218.
See, e.g.: Council Doc, 18031/13 (19 Dec 2013, full version on lobbyplag.eu), 14788/1/14 (13-11-2014).
- 219.
J.W. Goodman, Telecommunications Policy-Making in the European Union, Edward Elgar Publishing, 2006, at 133 et seq.
- 220.
- 221.
Further read on the evolution of EU policy in this area: Steve Peers in The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, Chapter 10.
- 222.
Articles 82–89 TFEU, and in particular Articles 82 and 87.
- 223.
E.g., Article 87(3) TFEU on operational cooperation of the police contains exceptions to the qualified majority voting in the Council and requires unanimity; Articles 82(3) and 83(3) TFEU provide for emergency brakes where a proposed measure could affect fundamental aspects of a Member State’s criminal justice system.
- 224.
Further read: Bruno de Witte, “The European Union as international legal experiment”, in: Gráinne de Búrca, J.H.H. Weiler (eds), The Worlds of European Constitutionalism, Contemporary European Politics, Cambridge University Press, 2012, Chapter 1.
- 225.
Wording by Neil Walker, in: Gráinne de Búrca, J.H.H. Weiler (eds), The Worlds of European Constitutionalism (Contemporary European Politics), Cambridge University Press, 2012, at 78.
- 226.
In his essay on the transformation of Europe, Weiler points at views of a European Union having “a federal-type structure” (without mentioning the term superstate) which is obviously in contrast with a more supranationalist foundation; see: The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press 1999, at 16.
- 227.
Article 288(2) TFEU.
- 228.
Koen Lenaerts and Piet van Nuffel, European Union Law (Third edition) Sweet & Maxwell, 2010, at I-026.
- 229.
Wording taken from the Introduction of Gráinne de Búrca, J.H.H. Weiler (eds), The Worlds of European Constitutionalism (Contemporary European Politics), Cambridge University Press, 2012.
- 230.
This is discussed in Chap. 9.
- 231.
E.g., quite strongly by Christiaan Timmermans in The Magic World of Constitutional Pluralism, European Constitutional Law Review, 10, pp. 349–358, 2014.
- 232.
Commission Proposal for a General Data Protection Regulation, COM (2012), 11 final.
- 233.
Masing, “Ein Abschied von den Grundrechten”, Süddeutsche Zeitung 9 January 2012.
- 234.
Case C/64, Costa v E.N.E.L., EU:C:1964:66.
- 235.
Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, 2011, Chapter 9.
- 236.
The classic case is Simmenthal, C-106/77, EU:C:1978:49, at 21: “[…] every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.”
- 237.
Declaration 17 Concerning Primacy.
- 238.
Opinion 2/13, EU:C:2014:2475.
- 239.
This relates to views on legal or constitutional pluralism.
- 240.
Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48, Issue 5, pp. 1417–1453, 2011, at 1433 (footnote 34 of Chap. 2).
- 241.
Case 2 BvR 2661/06, 6 July 2010, Honeywell, at 57.
- 242.
Daniel Halberstam & Christoph Möllers, The German Constitutional Court says “Ja zu Deutschland!”, 10 German Law Journal, 1241–1258, 2009, at 241. This view does not reflect communis opinio amongst commentators, as follows from: Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca, Oxford University Press, 2011, at 37.
- 243.
At 57 of the ruling.
- 244.
Or, in other words, where the EU might act ultra vires.
- 245.
This answers, for the Bundesverfassungsgericht, what Weiler calls “The Decisive Question” on the autonomy of the EU legal order, The Constitution of Europe, “Do the new clothes have an emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press, 1999, Chapter 9.
- 246.
The CJEU should be involved beforehand, in the context of a preliminary procedure under Article 267 TFEU; at 60 of the ruling.
- 247.
Case C-62/14, Gauweiler and others, EU:C:2015:400, Opinion of AG Cruz Villalón, EU:C:2015:7, at 34–69.
- 248.
Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48, Issue 5, pp. 1417–1453, 2011, at 1434.
- 249.
Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, pp 269–272, 2011.
- 250.
Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de Burca, pp 283–285, 2011.
- 251.
Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48: pp. 1417–1453, at 1435.
- 252.
P. Popelier, Europe Clauses’ and Constitutional Strategies in the Face of Multi-Level Governance, Maastricht Journal of European and Comparative Law, 2014, at 300.
- 253.
Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48, Issue 5, pp. 1417–1453, 2011, at 1418.
- 254.
Christiaan Timmermans, The Magic World of Constitutional Pluralism, European Constitutional Law Review 10, pp. 349–358, 2014, at 356.
- 255.
Opinion of AG Poiares Maduro in Case C-127/07, Arcelor, at 16.
- 256.
And, thus, based on Article 6 TEU as it was formulated before Lisbon, also including a reference to national values.
- 257.
See Christiaan Timmermans, The Magic World of Constitutional Pluralism, European Constitutional Law Review, 10, 2014, pp. 349–358, and as a further read the books reviewed by Timmermans. See also: Avbelj Matej and Komarek Jan (eds.), Constitutional Pluralism in the European Union and Beyond, Hart Publishing, 2012.
- 258.
Case C-362/14, Schrems, EU:C:2015:650, at 51–53 and 61–65. In this particular context, it is irrelevant that the Court’s ruling declared the Safe Harbour Decision invalid.
- 259.
Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, OJ L 215/7.
- 260.
Case C-362/14, Schrems, EU:C:2015:650, at 63.
- 261.
Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 6.
- 262.
See Chap. 3.
- 263.
This statement is strongly defended in: Robert A. Dahl, Can international organizations be democratic? A skeptic’s view, in: Democracy’s Edges, Edited by Ian Shapiro and Casiano Hacker-Cordón, Cambridge University Press, 1999, pp. 19–36.
- 264.
This is the criterion for democratic legitimacy in the theory of Moravcsik.
- 265.
Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 6 and 22. They base themselves on scholars like F. Scharpf and G. Majone. Fundamental criticism is given by Paul Craig in Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press 2011.
- 266.
Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 7
- 267.
They call this “state taming”; Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 8.
- 268.
They give some examples of areas where more or less technocratic instruments prevail at the national level as well, such as competition law or banking policies.
- 269.
Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 9.
- 270.
Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European Law Journal, Vol. 4, No.1, March 1998, at 28.
- 271.
Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 26.
- 272.
Paul Craig, Integration, Democracy and Legitimacy, in: The evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press, 2011, pp 37–40.
- 273.
Craig points in this context, e.g., to Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, at 36), the adoption of which provoked wide reactions in the Member States, e.g. because it would allegedly lead to competition between workers in different parts of Europe – hence the expression “Polish plumber” – resulting in social dumping (source: Wikipedia; see: https://en.wikipedia.org/wiki/Polish_Plumber).
- 274.
Further read: Franziska Boehm, Information Sharing and Data Protection in the Area of Freedom, Security and Justice, Towards Harmonised Data Protection Principles for Information Exchange at EU-level, 2012, Springer.
- 275.
Cassese mentions as a paradox the unavoidable compromises in the EU rendering the EU ineffective, in: Stefano Micossi, Gian Luigi Tosato, Europe in the 21st Century: Perspectives from the Lisbon Treaty, CEPS Studies, 2009, at 3.
- 276.
Dougan mentions a “Europe of results”, with reference to the Commission Communication of that title; Michael Dougan, ‘The Treaty of Lisbon 2007: Winning minds, not hearts’, 45 CMLR, Issue 3, pp. 617–703, 2008, at 702.
- 277.
- 278.
Formula by Kenneth A. Bamberger, Deirdre K. Mulligan, Privacy on the Books and on the Ground, 2011, Stanford Law Review, Vol. 63, January 2011.
- 279.
Mayr explains that the English versions of the Court’s rulings sometimes contain the term ‘effet utile’, but also ‘effectiveness’ or ‘full effectiveness’, more rarely also ‘full force and effect’ or ‘practical effect’; see: Putting a Leash on the Court of Justice? Preconceptions in National Methodology v Effet Utile as a Meta-Rule, European Journal of Legal Studies, Volume 5, Issue 2 (Autumn/Winter 2012/13), pp. 8–21.
- 280.
See, more elaborated: Koen Lenaerts, Ignace Maselis and Kathleen Gutman, EU Procedural Law, Oxford University Press, 2014, at 4.05.
- 281.
As a general requirement of EU law; see: EU Law, Text, Cases and Material, Fifth Edition, Paul Craig and Grainne de Burca, 2011, at 223–231.
- 282.
See Chap. 2 of this book.
- 283.
Liesbet Hooghe and Gary Marks, Unraveling the Central State, but How? Types of Multi-level Governance, American Political Science Review, Vol. 97, No. 2 May 2003, at 237.
- 284.
E.g., Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A comprehensive approach on personal data protection in the European Union, COM (2010) 609 final.
- 285.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Safeguarding Privacy in a Connected World A European Data Protection Framework for the 21st Century, COM (2012), 9 final.
- 286.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Safeguarding Privacy in a Connected World, A European Data Protection Framework for the 21st Century, COM (2012) 9 final, at 6, also mentions ‘consent’ as an element of control.
- 287.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Safeguarding Privacy in a Connected World, A European Data Protection Framework for the 21st Century, COM (2012) 9 final, at 6.
- 288.
Case C-131/12, Google Spain and Google Inc., EU:C:2014:317, at 96 et seq., where reference is made to Articles 12(b) and 14 of Directive 95/46.
- 289.
Article 17 GDPR.
- 290.
- 291.
See: http://www.google.com/transparencyreport/removals/europeprivacy/?hl=en. See on the first period the Letter of the Google Privacy Counsel of 31 July 2014 to the Article 29 Working Party, available on: https://docs.google.com/file/d/0B8syaai6SSfiT0EwRUFyOENqR3M/edit.
- 292.
Terminology of Article 263(4) TFEU.
- 293.
Article 80 (1) GDPR. See also Article 80(2) GDPR, making it possible for Member States to provide these remedies to Not-for-profit organisations, without the mandate of the data subject.
- 294.
- 295.
This is a method which is much relied upon in the US for consumer privacy, White House paper, Consumer data privacy in a networked world, a framework for protecting privacy and promoting innovation in the global digital economy, February 2012 (http://www.whitehouse.gov/sites/default/files/privacy-final.pdf).
- 296.
This is an important element of the GDPR (Article 22), although the substantive provisions of the Regulation use the term accountability only in the specific context of principles relating to personal data processing (Article 5 (2)).
- 297.
This all will be further developed in Chap. 6 of this book.
- 298.
- 299.
According to the mission letter of 10 September 2014: “Coordinating the work on better regulation within the Commission, ensuring the compliance of EU proposals with the principles of subsidiarity and proportionality, and working with the European Parliament and the Council to remove unnecessary ‘red tape’ at both European and national level. This includes steering the Commission’s work on the ‘Regulatory Fitness and Performance Programme’ (REFIT) of EU legislation and ensuring the quality of impact assessments underpinning our activities”, available on: http://ec.europa.eu/about/juncker-commission/docs/timmermans_en.pdf.
- 300.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation for better results – An EU agenda, COM (2015) 215 final
- 301.
Commission Staff Working Document, Better Regulation Guidelines, SWD (2015) 111 final.
- 302.
Commission Staff Working Document, Better Regulation Guidelines, SWD (2015) 111 final, at 23.
- 303.
Recital (62) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281/31, as recently confirmed in Case C-362/14, Schrems, EU:C:2015:650, at 42. See Chap. 7, Sects. 7.1 and 7.2 of this book.
- 304.
E.g., Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A comprehensive approach on personal data protection in the European Union, COM (2010) 609 final.
- 305.
- 306.
Through what is called ‘multi-level governance’, governing by various governmental and non-governmental stakeholders; see: the special issue on Multi-Level Governance, Maastricht Journal of European and Comparative Law 2014/2.
- 307.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Safeguarding Privacy in a Connected World A European Data Protection Framework for the 21st Century, COM (2012), 9 final.
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Hijmans, H. (2016). The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy and Effectiveness. In: The European Union as Guardian of Internet Privacy. Law, Governance and Technology Series(), vol 31. Springer, Cham. https://doi.org/10.1007/978-3-319-34090-6_4
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