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.

‘Sanctions and Russia’ – report and debate

Katarzyna Stachyra

The Polish Institute of International Affairs (hereinafter: PISM) published on 14 January report ‘Sanctions and Russia’[1]. This issue holds attention of all international community, because recession in Russian economy and changes in trade relation with Western world influence not only concerned states, but also other powerful actors, such as China. Are sanctions effective and sufficient measure in the light of violation of international law by Russia? Which consequences are seen currently and what can we expect in the future? Those questions were asked during debate with the participation of Jarosław Ćwiek-Karpowicz (PISM), Marek Menkiszak (the Centre for Eastern Studies), Ivan Rassokhin (the Centre for Polish-Russian Business Cooperation) and Arleta Bojke as a moderator (TVP’s correspondent in Moscow).

Sanctions in PISM’s assessment

 

The report begins with explanation of the nature and mechanisms of sanctions. Then, authors try to assess sanction’s impact on various areas, such as Russian economy, politics, regions, bureaucracy, oligarchs, energy, military sector and foreign policy. Using statistical data, analysis and press reports PISM describes changes in Russia and presents interesting background of some phenomena which helps readers to understand situation. According to the report, general conclusion which may be drawn is that sanctions have severe influence to Russian economy and their main advantage was to refrain from further annexation of Ukraine.

‘Sanctions have so far been the most effective instrument of Western influence on Russia’s policy towards Ukraine, stopping the Kremlin from making a greater military incursion in the country.’

Moreover, PISM emphasized that ‘the EU should be ready to impose, in tandem with the United States, new sanctions in the event that Russia breaks the fragile ceasefire and pursues, openly or covertly, more territorial gains in eastern Ukraine.’

Other voices in debate

Opposite point of view was presented during debate by some of its participants. Marek Menkiszak strongly argued, that the most ‘painful’ sanctions are not those imposed by the USA and the EU, but… by Russia itself. He said that Russian embargo on goods from EU members states has the most negative impact of the current economic situation, because Russia is heavily dependent on import from these countries. It is worth noting that Russian propaganda has convinced the public opinion that problems with the availability of some products are due to Western sanctions – not by Russian embargo, which caused the situation. M. Menkiszak added, that Russian economy would be in recession even without sanctions, because of structural problems. Nevertheless, he found sanctions needed, as they constituted a kind of punishment and showed that Western states ‘exist’ and are able to take measures jointly.

©Katarzyna Stachyra (EUROpens BLOG)

©Katarzyna Stachyra (EUROpens BLOG)

Ivan Rassokhin presented similar view. Namely, he pointed out that present crisis in Russian economy results from neglect of the past in the first place. Sanctions are just another nail in the coffin. He said that in Russia there is no specific monetary policy – The Central Bank of the Russian Federation ‘acts as a counter’. Russia did not do anything but a good impression. I. Rassokhin noted, however, that effects of sanctions may be observed especially by ordinary people in the biggest cities. He thinks that sanctions are not so unfavorable for the elite as it seems. In his opinion lack of equipment, parts and technical assistance, which is very crucial in connection with the unconventional oil extraction is the most serious, because nobody – apart from the USA – produce such a specialized equipment. I. Rassokhin also disagreed with one of the conclusions in the report related with restraint of Russia from further annexation thanks to introducing sanctions. He believed, that even without punitive measures Russia would not take another part of the territory of Ukraine – since connecting territory is not the main purpose. Russia tends to destabilize the situation in Ukraine, in order to unravel its integration plans with the EU. It goes in the current situation, and it is not necessaryto take the next steps.

Foreseeing the future

According to PISM’s report, ‘As the sanctions are relatively new, any analysis of the impact of prohibitive measures against Russia is still preliminary.’ I agree with this statement. Situation of Russian economy is complicated, and sanctions are one of the factors which aggravate it. Basing on report and information from other sources two scenarios seem to be possible. The first one assumes that Russia will fall into deeper crisis and will have to change policy towards pro-European aspiration of Ukraine and other post-Soviet states. The second scenario is related with fostering closer trade relations by Russia with Asian states, especially with China. The question is how it would determine position of Russia and China in the future? And the most important – how long will we have to wait for stable situation in Ukraine? Nonetheless, we can say proudly that the EU passed difficult test of solidarity.

[1] Full report is available on http://www.pism.pl/files/?id_plik=19045.

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.

Writing Competition – Results!

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Thank you for all articles that you’ve sent to us for the purpose of the competition. We are really grateful for your interest.

The Editorial Board has decided upon two students, the winners are:

1. Katarzyna Stachyra (MA in Law, 1st year student of MA in European Studies).

2. Magdalena Styrnik (Faculty of Law, 5th year).

Congratulations! The winning articles will be published soon.

 

As a result of the competition, this is our current Editorial Board:

Emil Wojtaluk – the Editor in Chief

Anita Weprzędz – Vice Editor in Chief

Adrianna Brzozowska

Kamil Augustyniak

Katarzyna Stachyra

Magdalena Styrnik