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.

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.

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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.