Is the incompatibility of UK data retention law with EU law really a victory?

Legal Studies ◽  
2020 ◽  
pp. 1-26
Author(s):  
Matthew White
Keyword(s):  
Electronic Communication ◽  
Traffic Data ◽  
Eu Law ◽  
Data Retention ◽  
Member States ◽  
England And Wales ◽  
High Court ◽  
Prior Review ◽  
Serious Crime ◽  
Court Of Appeal

Abstract The Court of Justice of the European Union (ECJ) in 2014 ruled in Digital Rights Ireland that the Data Retention Directive was invalid for exceeding the limits of proportionality in light of Articles 7, 8 and 52(1) of the EU Charter of Fundamental Rights (Charter). Subsequently, preliminary references from the England and Wales Court of Appeal and the Swedish Administrative Court of Appeal sought clarification from the ECJ as to whether EU law permitted a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime. The ECJ in Tele2 and Watson ruled that in light of Articles 7, 8, 11 and 52(1) of the Charter, EU Member States were precluded from adopting national measures which provided general and indiscriminate retention of traffic and location data of all subscribers and registered users relating to all means of electronic communication. The ECJ also ruled that Member States were only permitted to adopt data retention measures for the purpose of fighting serious crime, and only when access to retained data was subject to prior review by a court or an independent administrative body. In 2018, the issue of the UK's data retention regime envisaged in Part 4 of the Investigatory Powers Act 2016 came before the England and Wales High Court. The High Court ruled that Part 4 was incompatible with EU law because access to retained communications data was not limited to the purpose of fighting serious crime, and it was not subject to prior review by a court or an independent administrative body. This judgment was regarded by the claimants, Liberty, as a ‘landmark victory for privacy rights’. However, this paper questions whether certain aspects of the High Court ruling are indeed a victory, by assessing its compatibility with EU law and the European Convention on Human Rights (ECHR).

scholarly journals Contributory negligence in the Court of Appeal: an empirical study

Legal Studies ◽  
2017 ◽  
Vol 37 (3) ◽  
pp. 437-467
Author(s):  
James Goudkamp ◽  
Donal Nolan
Keyword(s):  
Empirical Study ◽  
Common Law ◽  
England And Wales ◽  
High Court ◽  
Contributory Negligence ◽  
Court Of Appeal

In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine's operation in first instance courts. Our dataset comprised every appellate decision in which contributory negligence was an issue that was handed down during the study period and which we were able to access electronically. The most important findings include the fact that appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50%.

Achmea and the Implications for Challenge Proceedings before National Courts

2020 ◽  
Vol 5 (1) ◽  
pp. 146-166
Author(s):  
David Sandberg ◽  
Jacob Rosell Svensson
Keyword(s):  
Eu Law ◽  
Member States ◽  
Eu Member States ◽  
Arbitral Award ◽  
National Courts ◽  
Investment Arbitration ◽  
Court Of Appeal

Almost two years have passed since the CJEU delivered its ruling in the Achmea case. Since then, the topic of intra- EU investment arbitration has been frequently debated by academics and practitioners. However, only two national courts in EU Member States have rendered judgments in which the CJEU’S findings in Achmea have been subject to interpretation; the German Bundesgerichtsh of (BGH) which set aside the arbitral award between Slovakia and Achmea B.V., and the Swedish Svea Court of Appeal which dismissed the challenge of the arbitral awards between Poland and pl Holdings. This article examines the interpretation of the CJEU’S judgment in Achmea by the BGH and the Svea Court of Appeal, focusing on the reasoning of the latter. The article seeks to explain the different outcomes in light of, in particular, differences in Slovakia’s and Poland’s respective conduct during the arbitral proceeding, and differences between German and Swedish law. This article argues that the Svea Court of Appeal’s approach was fully reconcilable with the BGH’S judgment as well as EU law as interpreted by the cjeu in Achmea.

scholarly journals Legitimizing pre-emptive data surveillance under the EU law: the case of the PNR Directive

2021 ◽  
Vol 83 (1) ◽  
pp. 115-127
Author(s):  
Julia Wojnowska-Radzińska
Keyword(s):  
Member State ◽  
Eu Law ◽  
Member States ◽  
Eu Countries ◽  
Serious Crime ◽  
Data Surveillance ◽  
Surveillance Practice ◽  
The Individual ◽  
Eu Commission ◽  
The Eu

The paper analyses the PNR Directive as pre-emptive data surveillance practice. The 2016/681 Directive regulates the use of Passenger Name Record (PNR) data in the EU for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. It obliges airlines to hand national authorities passengers’ data for all flights from third countries to the EU and vice versa, but Member States can also extend it to ‘intra-EU’ ones (i.e. from an EU country to one or more other EU countries), provided that they notify the EU Commission. Thus, PNR Directive affects all passengers who arrive in the territory of one Member State originating from a third country, or who depart from a Member State’s territory to a non-EU country, including any transfer or transit flights. Using PNR data, the individual is profiled and encoded in terms of degrees of risk.

Exploitative Abuses

2021 ◽  
pp. 113-136
Author(s):  
Robert O’Donoghue
Keyword(s):  
Case Law ◽  
Advocate General ◽  
Comprehensive Description ◽  
Member States ◽  
High Court ◽  
Eu Member States ◽  
Regulatory Authorities ◽  
The Uk ◽  
Court Of Appeal ◽  
The Eu

Chapter 5 provides a detailed and comprehensive description and analysis of the major exploitative abuses cases considered by the English courts and competition and regulatory authorities since the inception of the Competition Act 1998, including the High Court, the Competition Appeal Tribunal, and the Court of Appeal. This decisional practice and case law have been widely cited and adopted by the EU Courts in Advocate General opinions and in the judgments and opinions of overseas authorities and courts. The chapter also contains a critique of the case law and decisional practice and highlights important practical points and points of principle that have received insufficient (or no) attention, as well as issues on which the case law and decisional practice are arguably wrong. This analysis is timely, since it is clear that the topic of exploitative abuse remains an important one for the UK competition authorities, regulators, and courts, perhaps even more so than authorities and courts in EU Member States.

interests are adversely affected by the claim of the CTM to the UK mark’s seniority must be able to contest the UK registration. Where the UK mark is still registered, this is not difficult. But where the UK mark has been relinquished voluntarily, the registry will have to establish whether it could have been revoked or invalidated if it were still on the register. This is the situation to which the regulations to be made under s 52(2)(b) is directed. Third, there have to be provisions concerning the conversion of a CTM or an application for one into a national application. This is because the CTMR provides for the applicant for, or owner of, a CTM to request that the application or registration be converted if it is refused or withdrawn, or ceases to have effect (wholly or partially). This situation is likely to arise where a CTM application conflicts with an earlier trademark registered in one or more Member States. The CTMR provides then that the applicant can request that the application be converted into national applications in Member States where there is no conflict. The request has to be filed with the CTMO, which passes it on to the national intellectual property offices of the Member States concerned. A national application arising in this way is treated no differently from an application filed in the normal way at the national registry at the date of filing of the original CTM application. Fourth, the regulation requires that the Member States designate courts to be Community trademark courts. Proceedings for infringement will be able to be brought in one such court: its decision will have Community-wide effect. The regulation sets out the rules for determining which Member State’s courts have jurisdiction: this depends on the domicile or place of business of the defendant or plaintiff, or on where the infringement has taken place. If the latter route is chosen, however, the judgment will have effect only in that Member State. The government proposes to designate those courts which presently have jurisdiction to hear trademark infringement cases: the High Court in England and Wales and in Northern Ireland and the Court of Session in Scotland. Fifth, certain provisions of the Act will be applied to Community trademarks too, and these require statutory instruments. They are: -Groundless threats; -Seizure by Customs and Excise of infringing matter; -Fraudulent use of a trademark. All instruments which may be made under these powers will be subject to the negative resolution procedure.

1997 ◽  
pp. 666-666
Keyword(s):  
Intellectual Property ◽  
Northern Ireland ◽  
Member State ◽  
National Registry ◽  
Member States ◽  
England And Wales ◽  
High Court ◽  
Trademark Infringement ◽  
The Government ◽  
The Uk

Tele2 Sverige AB v. Post-Och Telestyrelsen and Secretary of State for the Home Department v. Tom Watson, Peter Brice, and Geoffrey Lewis (C.J.E.U.)

2018 ◽  
Vol 57 (1) ◽  
pp. 125-154 ◽  
Author(s):  
Michelle Marie F. Villarica
Keyword(s):  
European Union ◽  
The European Union ◽  
Member States ◽  
Prior Review ◽  
Location Data ◽  
Serious Crime ◽  
Court Of Justice ◽  
Secretary Of State ◽  
Specific Objective ◽  
Home Department

In the joint cases of Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson, Peter Brice, and Geoffrey Lewis (the Decision), the Court of Justice of the European Union (CJEU) held that member states are precluded from adopting legislation that allows a general and indiscriminate retention of all traffic and location data. While targeted retention of data is allowed for the specific objective of fighting serious crime, retention must be proportionate and access to the data must be limited to what is strictly necessary. To ensure that this is achieved, adequate safeguards must be set in place and access to the data must be subject to prior review by a court or independent administrative body.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals The notion of ‘employer’: Towards a uniform European concept?

2021 ◽  
pp. 203195252199115
Author(s):  
Matthijs van Schadewijk
Keyword(s):  
Functional Approach ◽  
Working Relationships ◽  
Eu Law ◽  
Member States ◽  
Corporate Groups ◽  
European Legislation ◽  
Contractual Approach ◽  
First Time ◽  
The Eu ◽  
The Way

The growth in multilateral working relationships (e.g. agency work, chains of sub-contracting and corporate groups) is causing Member States to increasingly scrutinise their traditional, contractual approach to the notion of ‘employer’. So far, little attention has been paid to the boundaries and limits that EU law sets when defining the employer. The lack of attention may have come to an end with the recent AFMB judgment, in which the Court ruled, for the first time, that the concept of employer in a provision of EU law had to be given an autonomous and uniform interpretation throughout the EU. Starting from the AFMB judgment, the author analyses the concept of employer in EU law. The author finds that the concept of employer in EU law can be described as ‘uniform in its functionality’: in EU law, the national concept of the employer is never absolute, but the circumstances and the way in which the national concept must be set aside depend on the context and the objective of the European legislation in question. Through this functional approach, EU law partly harmonises the various national approaches to the concept of the employer. Nevertheless, a lack of specific reasoning on the part of the Court may grant the Member States considerable leeway to uphold their own views on the concept.

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