ECJ: no legal basis for biometric data in ID cards

Katarzyna Stachyra

What would you say if public authorities would ask you for providing fingerprints in order to issue ID card? Citizens from the Netherlands have refused. The Court of Justice of the European Union admitted they are right in judgement in joined cases C-446/12 to C-449/12[1].

Source: resources.infosecinstitute.com

Source: resources.infosecinstitute.com

Providing fingerprints – a serious breach of the physical integrity?

 

H.J. Kooistra, a citizen of the Netherlands, made an application for the issue of identity card. The Burgemeeste refused doing so because H.J. Kooistra did not agree for providing fingerprints and a facial image. He argued that fulfilling these duties constitutes a serious breach of physical integrity and right to privacy. Moreover, he was afraid of the security of his personal data, because they would be storaged in more than one medium, including decentralized database.

According to Netherlands law, providing fingerprints is one of the requirements in order to obtain ‘travel documents’, for example passports. Since ID cards allow EU citizens to move freely within the EU, the official authorities in the Netherlands apply law referred to ‘travel documents’ to them. The court in the Netherlands, before which this case was pending, decided to ask ECJ for preliminary ruling. The key point was to answer whether law concerning passports – at domestic law level as well as EU law – is applicable for ID cards.

Clear answer…

ECJ stated that ‘the fact that identity cards, such as Netherlands identity cards, may be used for the purposes of travel within the European Union and to a limited number of non-Member States, does not bring them within the scope of Regulation No 2252/2004’[2]. It means that according to EU law there is no requirement of providing fingerprints to obtain ID card.

Judgement of ECJ should remind us, that personal data protection, especially biometrics, is an issue that cannot be ignored. Public authorities, even they are acting on behalf of a state, are not allowed to demand providing data if there is no legal basis to do so. They have to act in compliance with law, which protect our fundamental rights. But those mechanisms will be useless without our care for security of personal data.

…and another issue

On the one hand, people’s awareness about their rights, such as right to privacy increase. Some of us are courageous and are ready to tell official authorities that their actions have no legal basis. On the other hand, there are a lot of people who are fascinated by new technologies. They share information about themselves, including biometric data, with private companies delivering ‘necessary’ services that make life easier, for example fingerprints reader instead of using PIN code. Unfortunately, people do not think about potential consequences of mentioned situations. You can change your PIN code many times, you can prove during court proceeding that sign under agreement is not yours, but you cannot change your fingerprints, iris recognition or hand geometry. When it comes to processing these data by private company, our agreement is sufficient basis. Every time before we agree we must consider advantages and risks and decide, whether we really want to say ‘yes’.

[1] Judgment Of The Court (Fourth Chamber), 16 April 2015, In Joined Cases C‑446/12 to C‑449/12.

[2] Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States.

Reklamy

The future of personal data protection in the EU – should we be afraid of it?

Katarzyna Stachyra

larson-jewelers-fingerprint-engraving-ringCurrently binding Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data celebrates its 20 birthday. Let’s imagine, how during last 20 years our lifestyle has changed. Today we have full of doubts, when we entrance fitness club thanks to fingerprint scanning. Then, after that without any resistance, we take selfie and share it with our friends. It is hard to believe but two decades ago there was no social media! Therefore questions about the future of personal data protection are valid as never before. The EU tries to face new challenges and work on new legal act on personal data protection – regulation, which would replace directive mentioned above. But it’s too early to celebrate success.

What is worth supporting

‘Google case’ (https://europensblog.wordpress.com/2014/05/19/right-to-be-forgotten-google-case/) showed how works differentiate between two legal orders. Certainly, from legal point of view it is clear why judgment of the Court of Justice of the European Union is binding only for EU member states. However, Google’s position, expressed outright, that ‘right to be forgotten’ may be enjoyed only by some of Europeans, not by clients living in the USA, arouses disgust. Despite the EU can’t improve their situation, it may do it with ours. Project of new regulation assumes, that even if company is registered in the third state it has to act in compliance with EU law, if its processing activities are related to the offering of goods or services to such data subjects in the EU. As a results, protection of our data will be strengthened. Moreover, regulation contains new terms, such as ‘biometric data’ and also refers to children’s personal data protection.

What is criticized

Skeptics remind us, that work on content of regulation lasts too long – 3 years. During this time, draft was changed many times and lost its original character. There were arguments between EU member states, EU institutions, which take part in legislative procedures, between NGO’s in member states, etc. It is said that Council of the EU’s amendments lead to weaken standards of protection, especially ‘sacred’ principles connected with purposes of processing and individual’s consent for processing.

Source: viaresource.com

Source: viaresource.com

People awareness and their freely, explicit consent for processing is, in opinion of a lot of NGOs focused on right to privacy , the key point of all personal data protection issues. In addition, some of them are against solutions which would empower entrepreneurs through liberalization of new law. According to NGOs, it creates a risk of abuse and increase of disparities between company and natural person. On the other side, we can’t ignore entrepreneurs’ reasons – their claim that reduction of formalities is needed in order to accomplish functioning of the EU’s single market.

Is it really the future?

Despite some advantages and disadvantages mentioned above, the question is, whether this is a real reform or rather just an introduction of a few changes. European Commission at the very beginning in 2012, sought to propose legal act, which would be an answer to current problems with personal data protection. Now there are doubts, not only if planned changes are revolutionary, but also if they would have adverse effects and weaken relatively high, in contrast to the USA, European standards of protection. It is uncertain, how long will we have to wait for entering into force new regulation and which other, now unfamiliar problematic issues will arise.

Obese means disabled?

Magdalena Styrnik

It is a common knowledge that being obese is not just the issue of  image, but above all it’s the issue of health. Obesity may reduce our comfort of life and make our existence in modern society much more difficult. As it turned out recently, under particular conditions obesity can be considered as disability and as such can not be a reason of discrimination while hiring people.

Obesity in numbers

Source: hrreview.co.uk

Source: hrreview.co.uk

In 2008 WHO estimated that in its Europe Region over 50% of both men and women were overweight, and roughly 23% of women and 20% of men were obese. The latest estimates in EU countries show that obesity affects 10-30% of adults. The fact that in 2011 more than 40 million children under age of five were overweight is even more alarming. Worldwide obesity has nearly doubled since 1980. Overweight and obesity are often measured using the BMI (Body Mass Index) scale. A BMI greater than or equal to 30 is obesity.

Kaltoft case

The way how landmark decision started was when 50 years old childminder from Denmark,  Karsten Kaltoft (weight about 160kg/ 25 stone) brought a discrimination case against his employers who dismissed him in 2010 after 15 years of working.

Source: dailymail.co.uk

Source: dailymail.co.uk

Local council, which Kaltoft was working for, claimed that his weight made him unable to perform basic duties and  he even required help to tie a children’s shoelaces. The other reason, by which the authority tried to justify its decision was a fall in the number of children, which meant that Kaltoft’s job was no more needed. The claimant said that he was already overweight when he got the job and for 15 years he was told he did a good job. His lawyers  dismissed the “shoelaces’ story” and argued that Kaltoft weight was the reason of his dismissal which amounted to unfair discrimination.

Denmark court decided to ask the ECJ to explain EU law concerning the grounds of discrimination (especially Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16)). As subsequent ECJ’ s rule pointed out, obesity can be one of them along with religion, age or sexual orientation, however only under certain circumstances.

The ECJ determined that obesity can fall within the concept of disability if it “hinders the full and effective participation of that person in professional life on an equal basis with other workers.” Further, judges explained that “ such would be a case, in particular, if the obesity of the worker hindered that participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity”. What is more, important point of this ruling is that the origin of the disability is irrelevant even if overeating is a cause for someone’s obesity.

Denmark court is now obligated to assess Kaltoft’s weight to fix if his case should be considered as a disability.

EU highest court ruling and its influence on employers and business

As ECJ’s judgment  is binding in EU countries it will surely affect European job market. According to C. Coleman (BBC) “ it’s a powerful statement that an obese worker whose weight hinders their performance at work is entitled to disability protection”.

Source: express.co.uk

Source: express.co.uk

However, there are much wider and serious consequences of such a rule. The obesity of a person now should be taken into consideration not only during recruitment process, but also during performing the job. The employers have to make much more effort than before to avoid discrimination suits. This may include wider seats, making access to the office easier and any other appropriate support for obese employees. It seems obvious that employers should ensure that their policies are in accordance with new rule.  They may be required to make reasonable adjustments for employees which medical problems are caused by obesity.  New solutions and higher costs may be unavoidable.

Someone may say that such a protection of obese employees will encourage them to stay obese even if they became unable to work as effectively as before. That seems to be another task for employers. They should consider what will cost them more- making adjustments or encouraging employees to stay fit by, for example, paying for gym or pool admission card.

The obesity itself is a very sensitive matter. As Kaltoft said he didn’t consider himself disabled.  Probably, so does a vast majority of obese people. It’ s important to remember that each situation is different and common sense will play crucial part in each case.

I believe that such a rule was not necessary to make a society aware that obesity is no reason for discrimination in any field of life, regardless the cause of being obese.  The rule itself will certainly affect the job market in EU, however it has another priceless value. The decision of EU highest court proves that overweight and obesity are  a common problem of our times. It is now our task to consider how we can prevent the situation when bad habits make our society a disabled society.

The EU accession to the European Convention on Human Rights – one step back

Katarzyna Stachyra

It was believed that after entering into force of the Lisbon Treaty the accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) will be obvious. The Lisbon Treaty made accession admissible thanks to granting legal capacity to the EU. What is more, it even imposed obligation on EU to become party to the Convention. Negotiations, which have been conducted since 2010 by the European Commission and the Steering Committee for Human Rights Ad Hoc Negotiation Group, resulted in adoption of the draft agreement on accession[1]. This document was examined by the European Court of Justice (hereinafter: ECJ) and its opinion about compliance with the Treaties, released on 18 December 2014 (C-2/13)[2], is significantly negative. ECJ said that ‘the devil is, however, as so often, in the detail’ and pointed out legal issues which have to be solved in order to access to the Convention. Some of these problems are presented below.

photo 1(1)

The Convention and its influence on relation between ECJ and ECHR

After the accession, the Convention will become part of EU law. It means that the EU, namely all of its institutions as well as Member States, will be bound by provisions of the Convention. Therefore, actions of institutions could be controlled according to measures contained in the Convention. In other words, they would be under jurisdiction of the European Court of Human Rights (hereinafter: ECHR). In this light arises serious question concerning relation between ECJ and ECHR. Accession to the Convention will allow ECHR to assess judicial actions of ECJ or to impose interpretation of the law. Firstly, it is worth emphasizing that judicial independence is the most important feature of courts and tribunals. Secondly, as art. 2 of Protocol no 8[3] reads, ‘accession of the Union shall not affect the competences of the Union or the powers of its institutions’. ECJ as one of the EU institutions has its specific competences. Above all, ECJ has exclusive jurisdiction in disputes between Member States or Member States and institutions, related with interpretation or application of the Treaties. Hence ECJ stated, that possible jurisdiction of ECHR in mentioned matters should be distinctly excluded. Otherwise there is evident incompliance with EU law.

Coordination between the Convention and Charter of Fundamental Rights

The Convention and Charter of Fundamental Rights contain a catalogue of rights and freedoms. Despite the similarities between these catalogues, there are still certain differences which occur in provisions, as well as in interpretations given by ECJ and ECHR. Problem of coordination those two legal acts has significant meaning from the perspective of the level of human rights protection. It is necessary to avoid existing two different standards, because it could violate principle of primacy of the EU law. Because the Convention allows states to introduce higher standards than it presents itself it may lead to establishment of larger scope of protection than it is provided by Charter of Fundamental Rights. As a result, there would be a risk that Charter of Fundamental Rights would be ineffective, which would mean undermining the principle of the primacy of the EU law. According to ECJ opinion, agreement on accession shall include provisions which would prevent indicated situation.

Protocol no 16 – threat to the autonomy of the EU law

Problems with autonomy and primacy may occur after entering into force of Protocol no 16 to the Convention. This protocol introduces new function in ECHR system – advisory opinions, which may be given by ECHR at the request of highest courts and tribunals of state parties to the Convention. Generally speaking, advisory opinions may be compared to preliminary ruling given by ECJ, however they are not binding to national courts. Advisory opinions may infringe the autonomy of the procedure of request for preliminary ruling – use of the first solution may lead to resignation from the second one and, as a result, may constitute circumvention of the law. ECJ expressed in its opinion the concern about relation between those two procedures. It is on position that agreement on accession should clearly eliminate uncertainties in the application of those mechanisms.

Problems with control in the Common Foreign and Security Policy

Under provisions of draft agreement on accession, ECHR would be allowed to examine legal acts released in association with the Common Foreign and Security Policy (hereinafter: CFSP). Certainly, this examination would be conducted in the light of respecting fundamental rights. Since ECJ has no jurisdiction in certain matters related with CFSP, which results from EU law, after the accession to the Convention this jurisdiction will be granted to ECHR. ECJ emphasized that organ, which is not institution of EU, will be able to decide whether acts adopted in CFSP are in compliance with fundamental rights. In addition, it demonstrates that agreement does not follow the most important condition of accession, namely preserving the specific characteristics of the Union and Union law.

ECJ’s position – rationality or excessive precaution?

Undoubtedly we are witnesses of unprecedented event – as ECJ stated in opinion – ‘in which an international, supranational organisation — the EU — submits to the control of another international organisation — the Council of Europe — as regards compliance with basic standards of fundamental rights.’ Uniqueness lies in the fact that the EU is not a state but is pursuing to become the party to the Convention which is intended and formulated for states. Therefore there are various issues how to adjust legal mechanisms, suitable for states, for supranational organization. Opinion released by ECJ is very cautious. In certain aspects – too wary, for instance as regards of Protocol no 16. Draft agreement of accession does not contain provision concerning including this protocol in EU legal system – it would be possible in the future. Furthermore, Protocol no 16 has not even entered into force yet. However, general concern of ECJ about preserving features of the EU and its law is understandable. It is true that draft agreement on accession does not deal with all problems mentioned by ECJ. It seems that negative position of ECJ is intended to avoid confusion and uncertainty, which may occur after accession, if indicated issues will not be explained satisfactorily earlier. Problems with accession to the Convention, in the light of resistance against accession and duplication of similar systems of human rights protection, may provoke bold question – whether do we really need EU’s accession to the Convention?

[1]The full text of draft agreement is available on: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf
[2]The full text of opinion is available on: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160929&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=145591
[3]Protocol No 8 Relating To Article 6(2) Of The Treaty On European Union On The Accession Of The Union To The European Convention On The Protection Of Human Rights And Fundamental Freedoms.

ECJ about ‘benefit tourism’. Historical ruling?

Katarzyna Stachyra

One of the latest judgments of the Court of Justice of the European Union (ECJ), released on November 11, 2014 (Case C 333/13), may be considered by states such as the United Kingdom and Germany as an pre-Christmas gift. ECJ clearly stated that Member States have right to refuse granting social benefits to economically inactive Union citizens.

Relevant facts

 

10811652_1553477634886836_918260679_nFlorin Dano, born in 2009 in Germany and his mother, Elisabeta Dano, are Romanian nationals. They are living in Germany with Elisabeta Dano’s sister in her house. Ms Dano obtained in 2011 a residence certificate of unlimited duration from  the city of Leipzig, which also pays her child benefit. Since the  father of  F. Dano is unknown, his mother receives an advance on maintenance payments. The total sum of benefits is 317 Euro per month. Ms Dano is unemployed and has practically no education, her command of German is poor and – as ECJ stated – ‘there is nothing to indicate that she has looked for a job’. However, she made an application for the additional grant of benefits by way of basic provision. Her submission was refused twice by Job center Leipzig. The Social Court in Leipzig firstly wanted to take the same decision, but after analyzing this case decided to ask ECJ for preliminary ruling. The most important issue to resolve was concerning the general principle of non-discrimination on the one hand, and Member State’s right to prevent an unreasonable recourse to non-contributory social security benefits on the other.

Equal treatment not for everybody?

The Court of Justice of the European Union, namely the Grand Chamber, emphasized that under provisions of Directive 2004/38/EC there are conditions which need to be fulfilled in order to claim equal treatment with nationals of the host Member State. This condition is, inter alia, the requirement that the economically inactive Union citizen must have sufficient resources for himself and his family members. ECJ said that granting social benefits to person who is not complied with these requirements would be in opposition with the objective of the directive, which is to prevent EU citizens, who are nationals of other Member States, from becoming an unreasonable burden on the social assistance system of the host Member State. As a result, ECJ stated that Member States are entitled to ‘refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence’. Therefore in Ms Dano’s case ECJ found that she has no right to obtain additional social benefits.

Joy and concern

10822374_1553477631553503_528118073_nThis preliminary ruling was welcomed enthusiastically, especially by commentators from the UK. After controversial James Cameron’s statement about abuse of the UK’ social system and threat of leaving the EU it is not surprising. Regardless of the assessment of this, it is worth noting that disagreement to ‘benefit tourism’ is commendable. The principle of non-discrimination is a significant achievement of the European integration, however, as it is observed, applying this rule without any conditions leads to abuses. It is interesting how this judgment will influence our European reality. One can hope it will help to reduce the existing tensions between Member States in issues regarding social system matters and free movement of people. Whereas there may arise anxiety about the next steps – whether will they move away – and how far – from principles which are currently accepted in the EU.

‘Right to be forgotten’ – Google case

Kamil Augustyniak

 

The Court of Justice of the European Union stated (Case C-131/12) that every EU Citizen has right to protect his/her private information that can be removed from search engine results if it is ‘inadequate, irrelevant, or no longer relevant’.

Globalization, technological progress and flow of information are, surely, the major advantages of contemporary world. Everyone can search an information in the Internet and find private data about his/her neighbors. In numerous cases we do not mind the information about us is commonly available because we posted it by ourselves. Everything is good till we can control what others read about us. The difficulty starts when the information appears without our knowledge or offend us somehow.

In response to cyber-world

On 25th January 2012, Viviane Reding (the European Commission Vice-President responsible for Justice, Fundamental Rights and Citizenship) proposed a new document – General Data Protection Regulation – that would be an amended EU Data Protection Directive 95/46/EC. In order to avoid breaching peoples’ privacy in cyberspace more efficiently than before, the document has to be transformed and catch up 21st century.That what distinguish a new suggested document will be a possibility to ask service providers to delete the personal data from a particular web-page or a list of results that is displayed following a search made on the basis of consumer’s name. When such request is reasonable, the links containing that information must be removed, unless applicant is a public person and the free access to a particular information is justified.

Personal data protection dispute: Google Spain v Mario Costeja González

In 2010 Mario Costeja González, a Spanish national, complaint against La Vanguardia Ediciones SL (the publisher of a daily newspaper with a large circulation in Spain) and Google Inc. The applicant found that after putting his name in search engine, the results display links to pages relating to La Vanguardia’s newspaper from 1998. The articles included an announcementabout real-estate auction for recovery of social security debts owed by Mr Costeja González. The two possible solutions of this dispute were proposed by applicant to each subject. The newspaper either removes or alters the page so that the applicant’s name will not appear anymore. Similarly with Google, personal details will be removed or covered in order to protect Mr Costeja González private interest. After all, the Spanish Data Protection Agency rejected the request against La Vanguardia because all these information has been published lawfully. However, the complaint against Google was upheld and requested to remove personal data from their index. As a result, the Google company appeal to Spanish National High Court which referred several questions to the Court of Justice of the EU that ruled that Mr Mario Costeja González has right to ask for such removal.

What Google says?goog

In view of Google company the decision is described as disappointing. People will tend to overuse this right to feel better. If they do not like the information, they will ask for removal and no legal oversight will be necessary to succeed. Failing to comply with the regulation will cause high fines.

Supranational effect

From the perspective of an ordinary citizen the changes are essential due to the fact that nobody in the Internet is anonymous so that faked information will disappear irretrievably. The EU legislation entered the higher level by readjusting problems of contemporary world. Since the judgment is officially approved, the new policy has to be transferred into all Member States’ laws, according to the rule of primacy of the EU law.

Read the judgment and official opinion:

http://curia.europa.eu/juris/documents.jsf?pro=&lgrec=pl&nat=or&oqp=&lg=&dates=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&num=C-131%252F12&td=%3BALL&pcs=Oor&avg=&page=1&mat=or&jge=&for=&cid=726021#

Read more about the primacy of the EU law over the laws of the Member States: https://europensblog.wordpress.com/2014/03/03/roots-of-primacy-of-the-eu-law-over-the-laws-of-member-states/

Roots of primacy of the EU law over the laws of Member States

Adrianna Brzozowska

Many people may wonder on what ground and when exactly the EU legislation outcomes have become more important than domestic law of particular countries. Here I am going to remind you of the case that changed so much the functioning of European Community.

Flaminio Costa v ENEL (Ente Nazionale Energia Elettrica C – 6/64)- summary

This case from 1964 led to the establishment the primacy of the EU law over the laws of Member States.

Mr. Flaminio Costa was an Italian citizen who owned some shares of the electricity company. In 1962 Italy had nationalized the production and distribution of electric energy and created the Ente Nazionale per l’Energia Elettrica ( ENEL, National Electricity Board). Mr. Costa was opposed to the nationalization and as the protest, he decided not pay the bill of a symbolic amount: 1,925 lire (€0.99). The electricity organization sued Mr. Costa for nonpayment. He prepared a written statement of case, where he ‘asked’ the Court for an interpretation of the EEC Treaty provisions, as he believed that nationalization was contrary to the Community’s law (the EU Law).

The Italian Government stated that the national law, under which they had nationalized mentioned electricity company, was enacted after the incorporation of the EEC Treaty, so that it is the Italian law that should have the priority over it. According to the opinion, given by the Italian Government, application for a preliminary ruling was ‚absolutely inadmissible’ and there were no grounds for raising questions concerning the Treaty.

Judgement of the European Court of Justice

Admissibility: ‘As a subsequent unilateral measure cannot take precedence over Community law, the questions put by the Giudice Conciliatore, Milan, are admissible in so far as they relate in this case to the interpretation of provisions of the EEC Treaty’.

MML736_EUHUB_Legal_ICON

The Court decided that it cannot solve the dispute between Mr. Flaminio Costa and ENEL at the national level, but it can only deal with the questions concerning interpretation of the provisions stated in the EEC Treaty (the Treaty of Rome).

Moreover, it ruled that the EEC Treaty is not an usual agreement between the Member States, and that the Community (the EU) has its own legal system that they have to follow, which is the consequence of the fact that they gave to ‘it’ a part of their own sovereignty. So that, the Community Law (the EU Law) should also be exercised by the national courts of Member States. Provisions stated in the Treaty cannot be changed by any national law, because every State has to follow exactly the same provisions. If the Member States have the opportunity to change implemented law by releasing new and quite different legislative acts, the European Union’s Law would be different in the various Member States. That could be contrary to some general principles of the Community Law (the EU Law).

It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of it’s character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail’.

That is why the Court ruled that the Treaty has the primacy over national laws which is also confirmed by the provision that it (regulation) should be binding as a whole and be directly applied in all the Member States. The national law of the Member States, that came into force later – should not be contrary to the Community Law (the European Union’s Law).