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

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.

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).