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Seán Hurley BL

8 May 2024

Interim relief before the General Court: Bytedance Ltd unsuccessful in seeking relief

Case T-1077/23 R Bytedance Ltd v European Commission ECLI:EU:T:2024:94 (9 Feburary 2024) offers a recent illustration of the criteria that must be met for the General Court to grant interim relief pursuant to Articles 278 and 279 TFEU. The application for interim relief arose in the context of annulment proceedings being brought by Bytedance Ltd following the Commission designating Bytedance as a gatekeeper pursuant to Article 3 of Regulation (EU) 2022/1925, the Digital Markets Act (‘DMA’)


12 July 2023

Liability of data controllers for cyber-attacks – some useful comments from Luxembourg

Background On 15 July 2019, media reports revealed that the Bulgarian National Revenue Agency, a public body, had been the victim of a cyber-attack when hackers gained access to the Agency’s internal databases and published online the tax and social security details of over 6 million data subjects. On foot of this attack, hundreds of civil claims were instituted in the Bulgarian courts. In VB v Natsionalna agentsia za prihodite[1], the Supreme Administrative Court of Bulgaria referred five questions to the CJEU querying, in essence, whether a data controller can be held liable for failing to comply with its obligations under Article 32 GDPR to ensure an appropriate level of security for personal data, in circumstances where a data breach is caused by a cyber-attack perpetrated by unknown third parties which was entirely outside of the control of the controller. Advocate General Pitruzzella delivered his Opinion on 27 April 2023 which makes a number of points of practical relevance to data controllers, including when data security measures will be considered to be “appropriate” for the purpose of Article 32 GDPR, when the burden of proof might be reversed in data breach claims, and the nature of a controller’s liability under the GDPR. When are data security measures “appropriate”? Article 32 GDPR requires controllers to have in place “appropriate technical and organisational measures” to ensure security for personal data. Helpfully, AG Pitruzzella confirmed that the occurrence of a personal data breach does not, in itself, mean that the security measures in place at the time of the breach are not “appropriate”. Rather, controllers benefit from a certain leeway in choosing appropriate measures. However, this does not mean that the appropriateness of the data security measures taken is entirely a matter for the controller. AG Pitruzzella helpfully detailed a number of considerations that will be relevant to a court’s assessment of whether the choice of security measures taken by a controller complies with Article 32, namely: - The GDPR does not prescribe a specific set of measures to be taken. Rather, the appropriateness of a given measure must be considered based on the evidence, including whether it is capable of reasonably preventing risk and minimising the negative effects of a data breach. - The controller can take into account the “state of the art” and the costs of implementation and is not required to take measures which go beyond what is reasonably possible. - The appropriateness of the measures depends on a balancing of the interests of data subjects in ensuring a high level of protection of their personal data, the economic interests of the controller and the controller’s own technical capacities. - The way in which the controller has applied the security measures in practice is relevant. - The obligation under Article 32 is an ongoing one and security measures must be re-examined and brought up to date continuously. - Data security measures are not only aimed at preventing data breaches but also at limiting their effects. Reversal of the burden of proof Under Article 82, any person who has suffered damage as a result of an infringement of the GDPR has the right to receive compensation from the controller for the damage suffered. Article 82(3) goes on to provide that a controller is exempt from liability if it “proves that it is not in any way responsible for the event giving rise to the damage”. AG Pitruzzella confirmed that the individual bringing a data breach claim must establish (a) a breach of the GDPR on the part of the controller, (b) damage and (c) a causal link between the breach and the damage. However, the requirement on the individual plaintiff to show that there has been a breach of the GDPR does not mean the plaintiff must demonstrate that the data security measures adopted by the controller are inappropriate having regard to Article 32. AG Pitruzzella recognised that it would be almost impossible, in practical terms, for an individual plaintiff to prove that the controller’s security measures are inadequate. Accordingly, the Advocate General considered it more logical that the controller should bear the burden of proof in showing compliance with Article 32. Where a plaintiff has been successful in establishing the three elements of a data protection claim, AG Pitruzzella confirmed that Article 82(3) nevertheless may allow the controller to escape liability in circumstances where it is not “in any way” responsible for the event giving rise to the contravention. In this regard, the controller is subject to a heightened burden of proof. It follows that, when faced with a data breach claim under Article 82, where a plaintiff has been able to establish that a contravention of the GDPR has occurred causing them damage, the burden of proof shifts onto the controller to establish (a) that they have complied with their specific data security obligations under Article 32, or (b) that they were not in any way responsible for the data breach giving rise to the damage. Strict liability? Article 82 raises the perennial question of whether breach of GDPR is a strict liability tort. The Opinion makes a number of interesting comments regarding the nature of a controller’s liability under Article 82. First, AG Pitruzzella confirmed that liability under the GDPR incorporates elements of “objective” or “strict” liability, on the basis of the intrinsic danger posed by the processing of personal data. However, he went on to note that liability under the GDPR cannot be described as “no-fault”, in that liability stems from a failure to adopt reasonable measures which are appropriate to prevent damage to the data subject, taking into account the risks for the affected data subjects. Accordingly, AG Pitruzzella appears to consider liability for data breaches to be hybrid in nature. It seems we are no nearer to a clear answer to the question of whether breach of GDPR is a tort of strict liability. James Kneale BL *Note, the Opinion is available in many languages including French. [1] Opinion of Advocate General Pitruzzella of 27 April 2023 in case C-340/12 VB v Natsionalna agentsia za prihodite, EU:C:2023:353.


8 Feb 2023

Non-Material Damages in a Material World: The End of the Road for Non-Material Loss?

Background On 12 May 2021, the Austrian Supreme Court submitted a number of questions on the interpretation of Article 82(1) GDPR to the CJEU in the case of UI v Österreichische Post AG.[1] The Defendant in the case stored information on political party affinities of the Austrian population, in order to target individuals on the basis of their party affinity data. The CJEU was requested to determine whether and to what extent the Plaintiff was entitled to claim for “non-material loss” arising from breaches of their data rights under Art. 82(1) GDPR. On 6 October 2022, the EU Advocate General delivered his opinion (“the Opinion”), which may be broadly summarised as follows: 1. A mere infringement of the GDPR is not in itself sufficient, if that infringement is not accompanied by the relevant material or non-material damage. 2. The principles of effectiveness and equivalence do not appear to play an important role for Art. 82. In this respect, damages for breach of Art. 82(1) have only a private compensatory function. 3. The compensation for non-material damages does not cover “mere upset” which the person concerned may feel as a result of the infringement. Headline Significance of the Advocate General’s Opinion The Opinion could be highly significant, primarily in how it directly contravenes the prevailing case law, which allows compensation for damages even without proof of any actual damage. In this respect, the Opinion moves away from the supposed deterring and sanctioning effect of damages awarded under the GDPR. The Opinion appears to suggest a de minimus threshold, beyond “mere upset”, which must be exceeded before claimants can successfully seek damages for actual loss or distress. This approach appears to broadly follow recent developments of the English High Court in Rolfe v Veale[2]and Johnson v Eastlight Community Homes Ltd.[3]The decision of the CJEU on this issue may be instructive as to the persuasive weight UK judgments hold post-Brexit. The Opinion is also reflective of the rejection model prevalent in the US, where courts see no “harm” in mere privacy violations, and thus reject such claims at the outset. Since the GDPR came into force in 2018, certain court decisions have sought to restrict its effect, possibly in response to the pervasiveness of non-legal, industry messages that the GDPR has “gone too far”. The Opinion could be read as a concession to such trends, in a manner which, if followed, may have far-reaching consequences for damages under the GDPR. Practical Effect of the Advocate General’s Opinion The primary practical effect of the Opinion, should it be followed, would be the drastic decrease in claims under Article 82(1). Should the CJEU require that a certain threshold of causal, negative emotional consequences be reached by the claimant for a successful claim of non-material damages to be made, a significant amount of data subjects who have lost control of their data are unlikely to be awarded compensation under the GDPR. The Opinion envisages that Member States will create their own thresholds to limit the compensation for non-material damages under the GDPR. This may lead to the fragmentation of the principle across the EU bloc, and may encourage jurisdiction shopping among claimants. While no provision for class actions exists under Irish court rules, in other jurisdictions, the occurrence of class actions for breach of data rights is likely to be significantly reduced, in the event that the Opinion is followed. The Opinion suggests that other avenues for relief should be pursued, such as declarations, nominal damages or injunctions. This is likely to deter data subjects from bringing claims for breaches of their data rights, where the cost of litigation is likely to outweigh the benefits of mere declaratory relief. While the Opinion had the opportunity to provide clear guidelines as to the threshold for non-material damages, regrettably, the language used is unhelpfully vague and the Opinion contains no positive definitions. It is unclear how “mere upset” is distinguishable from other negative emotional states which would result in successful claims of non-material damages. It is instructive that the Opinion failed to take an explicit view on whether the Plaintiff in UI v Österreichische Post AG should be entitled to non-material damages. In this respect, the judgment of the CJEU is eagerly anticipated, in order to clarify whether the death knell of non-material damages for breach of data rights is, in fact, being rung out across the EU. [1] CJEU – UI v Österreichische Post AG (pending case) – C-300/21. [2]Rolfe v Veale Wasbrough Vizards LLP [2021] EWHC 2809 (QB). [3]Johnson v Eastlight Community Homes [2021] EWHC 3069 (QB).


28 April 2022 

Work or Rest - The Definition of “Work” under the Working Time Directives

Introduction The Working Time Directives (WTDs) are among the most significant pieces of European Union social and economic legislation. They have had a profound effect on employment law in Ireland by both giving workers substantive rights and placing weighty obligations on employers. The definition of “work,” as interpreted by the Court of Justice of the European Union (CJEU), has been central to their impact. Most recently, two CJEU judgments arising from references from the Slovenian courts have both reaffirmed the CJEU’s broad definition of work and clarified the line between work and rest. Since the foundational Simap judgment, the CJEU has explored the WTDs’ underlying principles and, in line with those principles, expanded the definition of “work”.[1] The dichotomy in the definitions of “work” and “rest” under art.2 of Directive 2003/88/EC, whereby all of an employee’s time must be either work or rest (and that any intermediary designation such as “standby” and “on call” must be excluded) has been central to the Court’s approach. Prior to assessing recent developments, it is necessary to introduce four key cases by way of context. Basic Principles Two of the earliest cases on this matter, Simap and Jaeger, concerned the status of on-call doctors.[2] In both cases, the employer only counted active periods in full during on-call shifts. In Simap, the CJEU rejected the possibility of an intermediary classification between work and rest, while Jaeger confirmed this applies even where a worker is sleeping. Crucially, Simap distinguished between doctors present in health centres, who were deemed working, and those at home, who were deemed to be resting.[3] Arguably, this physical presence requirement introduced an unjustifiable distinction between workers, a matter revisited later by the Court. Physical Presence Two later CJEU judgments, Tyco and Matzak, reappraised the requirement to be present in the workplace.[4] Tyco concerned technicians in a security firm in Spain who were previously based in regional centres. Following the centres’ closure, the workers travelled directly from their homes to clients; a dispute arose regarding the classification of this travel time. The CJEU first rejected the requirement for a worker to be active. Second, it noted that, where the place of employment varied, an employee could not control their travel time. Accordingly, it found travel to and from clients, including between clients during the day, constituted working time under the WTDs. In Matzak, the CJEU further departed from the physical presence requirement. This case concerned a volunteer firefighter who challenged the designation of his on-call shifts, during which he was required to be within eight minutes of the fire station and contactable. The CJEU gave significant weight to Mr. Matzak’s constraint by his employer and the loss of liberty he suffered.[5] Given he could not manage his time freely, the Court found Mr. Matzak’s periods on call were work. Recent Developments A number of judgments delivered in 2021 have clarified the level of constraint required for on-call time to be considered work where a worker is not necessarily in the workplace. Radiotelevizija Slovenija concerned a technician stationed in a remote transmission centre where he performed 12-hour shifts followed by six hours standby and six hours rest.[6] Due to the centre’s mountainous location, and the requirement that he remain within one hour of his workplace, it was impractical for him to leave the centre. The Court concluded that, while recognising his liberty was restricted, the level of constraint was not sufficient during on-call periods to constitute work under the WTDs. In the second case, Ministrstvo za obrambo, the CJEU considered the case of an officer in the Slovenian army who was obliged to perform seven days on standby each month during which he was required to remain in his barracks.[7] In finding these periods constituted work under the WTDs, the Court deemed that the level of constraint must affect “… objectively and very significantly, the possibility for the latter freely to manage the time…”[8] The CJEU recently considered this test in a preliminary reference from the Labour Court in Dublin City Council, which concerned the designation of a firefighter’s standby periods in circumstances where he worked during those times as a taxi driver.[9] The Court, in setting out the relevant factors, stated that the fact a worker could pursue another occupation may indicate an employer did not exercise sufficient constraint over the employee during those periods for the time to be defined as work. Conclusion To remain relevant to the present and future generations, the WTDs must evolve to reflect the dynamics of contemporary employment. The COVID-19 pandemic fundamentally changed the nature of work for many and greatly accelerated the move to remote work. It is therefore welcome and timely that the recent cases above have both conclusively removed the physical presence requirement in defining work and the CJEU has established a new standard that focuses on the level of constraint on a worker. The views expressed in this blog are personal to the author alone and do not constitute the views of the EUBA and/or its Executive Committee. The information in the blog is not and is not intended to constitute legal advice. Readers should always seek independent legal advice with regard to any particular legal matter arising from or connected with this blog. The EUBA and its Executive Committee have agreed to the publication of this blog for general informational purposes only but make no representations as to its content. The blog and its contents cannot be republished in any format without the express written consent of the author [1] SIMAP, C-303/98, ECLI:EU:C:2000:528 [2] Jaeger, C-151/02, ECLI:EU:C:2003:437 [3] SIMAP, at para. 50 [4] Tyco C-266/14, ECLI:EU:C:2015:578 and Matzak C-518/15, ECLI:EU:C:2018:82 [5] Matzak, at para. 63 [6] D.J. v Radiotelevizija Slovenija Case C-742/19, ECLI:EU:C:2021:597 [7] B.K. v Republika Slovenija (Ministrstvo za obrambo), Case C-742/19, ECLI:EU:C:2021:597 [8] B.K. at para 28 [9] MG v. Dublin City Council C-214/20, ECLI:EU:C:2021:909. See also R.J. v. Stadt Offenbach am Main, C-580/19, ECLI:EU:C:2021:183.


21 March 2022

Continental European approaches to non-material damages under Article 82 GDPR

While the General Data Protection Regulation has generated libraries worth of commentary since it first entered into force, there has yet to be a decision of the Court of Justice of the European Union on the thorny issue of damages for the breach of the rights of data subjects. That is all about to change however, particularly in relation to the concept and interpretation of ‘non-material’ damages within the meaning of Art 82 GDPR. Germany’s Bundesverfassungsgericht, Austria’s Oberster Gerichtshof and Bulgaria’s Varhoven Administrativen Sad have all made preliminary references on this issue. In essence, the central question boils down to one issue - the referring courts query whether or not to succeed in obtaining ‘non-material’ damages, an applicant must have suffered harm or damage, or if the infringement of provisions of the GDPR in itself sufficient. Somewhat surprisingly, there has been little judicial comment in relation to this in an Irish context, albeit that Whelan J, as obiter in Shawl Property v A and B [2021] IECA 53 at [114], noted that “Nothing stated in s. 117 [Data Protection Act 2018] or indeed the Act itself suggests that a data protection action is a tort of strict liability”,[1] and the position remains unclear since Collins v FBD Insurance PLC [2013] IEHC 137, whereby Feeney J held that under the Data Protection Acts 1988-2003 compensation requires proof of the existence of a duty of care, a breach of that duty and that damage flowed from that breach. Ireland is not the only country grappling with how ‘non-material’ damage should be interpreted, with a number of Member States putting their own idiosyncratic spin on it. First, the German courts have approached the interpretation of non-material damages from the perspective of German national law whereby there must be a de minimis quantum of harm in order to succeed in the claim for damages. In one of the first cases, the Amtsgericht Diez held on 7 November 2018,[2] that a mere violation of the GDPR without resulting in damage does not result in liability leading directly to an award of damages as while on the one hand, a serious violation of personal rights is no longer necessary, on the other, no compensation for pain and suffering arises for a minor violation or for every mere individually-perceived inconvenience without serious impairment; rather, the person concerned must have suffered a noticeable disadvantage and an objective weighty impairment of an issue related to their personality. This interpretation is largely dependent on the application of German domestic legal principles in relation to limits on tortious non-material damage - known as Bagatellverstoß. In particular, §253 Abs 1 BGB, the German Civil Code, states that the compensation of non-material damage only arises if expressly provided for by law and §253 Abs 2 BGB confines this to injuries to the person, health, freedom, or sexual self-determination. A similar interpretation arose in the Amtsgericht Goslar, ultimately leading to the live German reference. A similar approach has been taken by the Dutch courts when in April 2020, the Raad van State held that breach of GDPR does not automatically imply an impairment of the integrity of a person which would lead to compensation of damages. The facts that an infringement of GDPR can result in non-material damage and that a data subject must receive full and effective compensation of the damages under GDPR, do not mean that violation of the law always results in damages and the damage caused must be real and certain.[3] Similarly, the Oberlandesgericht Innsbruck reversed a lower court decision awarding non-material damages for unlawful processing of political opinion data, on the basis that a minimum level of personal impairment will have to be required for the existence of non-material damage.[4] How the CJEU will decide this remains to seen, although it certainly seems that an interpretation founded on what appears to be a common continental thread is not altogether unlikely. While Ireland has opted to conceptualise data protection actions under the Data Protection Act 2018 as a tort, it may be that any interpretation that the CJEU arrives at will inexorably lead to a tort quite unlike those with a common law genesis. The views expressed in this blog are personal to the author alone and do not constitute the views of the EUBA and/or its Executive Committee. The information in the blog is not and is not intended to constitute legal advice. Readers should always seek independent legal advice with regard to any particular legal matter arising from or connected with this blog. The EUBA and its Executive Committee have agreed to the publication of this blog for general informational purposes only but make no representations as to its content. The blog and its contents cannot be republished in any format without the express written consent of the author. [1] See also McGrath and Finan, ‘Data Protection Breach: A tort of strict liability?’ (Bar of Ireland: Viewpoints, 7 July 2021) accessible at [2] Rechtsprechung AG Diez, 07.11.2018 - 8 C 130/18. [3] Raad van State, 1 April 2020, 201902699/1/A2. [4] Oberlandesgericht Innsbruck, 13 February 2020, 1 R 182/19b.


09 March 2022

Litigating European Union Law Conference at the ERA in Trier

Updated: 28 April 2022

In the last week of January, members of the EU Bar Association attended the Litigating European Union Law conference hosted by the Academy of European Union Law (ERA) in the German city of Trier. This three-day conference brought participants, in a practical and engaging way, through each step of bringing a case before the European Court of Justice (ECJ). The conference was held in hybrid format, with six members travelling to Trier to attend in-person. We joined more than 30 lawyers from across Europe bringing a range of perspectives and experiences, and representing diverse legal traditions. The conference was held in the excellent ERA premises in Trier and online participants logged in via the equally impressive webcasting facility. Michaela Hájková, of the ECJ, began the conference with a presentation on the basic workings of the Court and its interactions with domestic legal systems. Amedeo Barletta followed walking us through how to use the preliminary reference procedure. Drawing on his experience in Italy, he focused on how to persuade judges and decision makers in domestic courts and tribunals to make a preliminary reference. After lunch, Bram Hoorelbeke introduced us to the mechanics of litigating at the ECJ covering everything from how to submit pleadings to borrowing robes. We were disappointed to learn advocates can only borrow their own member state’s robe! It was an early start on Thursday for the short journey to visit the ECJ complex in Luxembourg. We toured the impressive court buildings and observed submissions in a preliminary reference from the Italian courts—the latest in a series of cases before the ECJ on the compatibility of restrictions on gambling with freedom of establishment. We returned to Trier for lunch and spent the afternoon with Daniel Sarmiento Ramírez-Escudero applying some of the lessons of the preceding days by working in groups to solve a problem question. Eileen Lagathu led the conference’s last day giving a lecture on admissibility and the options available to parties where an urgent or expedited preliminary ruling is sought. The conference then wrapped up with lunch. On Friday afternoon, those attending in-person had an opportunity to visit Trier, Germany’s oldest incorporated city, famed for its Roman ruins and as Karl Marx’s birthplace. Others took the train to visit central Luxembourg before flying home that evening. Two elements of Litigating European Union Law stand out. First, it is a fantastic opportunity to meet fellow lawyers from across the EU and benefit from shared knowledge and experiences. Second, visiting the ECJ helps to make the Court’s work more real and relevant to us as practitioners. The conference brought the previously distant prospect of bringing a case before the ECJ closer to reality. I highly recommend this and other ERA conferences and to anyone with an interest in EU law. Thank you to the EUBA for facilitating our attendance and to the ERA—Sanja Jovičić and Elizabeth Greenwood in particular—for hosting this excellent conference.


28 July 2020

Dempsey v An Bord Pleanála [2020] IEHC 188

High Court refers questions to the CJEU on whether the High Court is compelled under the EIA Directive to rule on the validity of an impugned development consent in spite of the fact that the parties want the proceedings to be struck out on consent In Dempsey v An Bord Pleanála [2020] IEHC 188, the High Court has decided to refer three questions to the CJEU where an important question of EU law arose. The issue was whether there can ever be a scenario in which a national court may be compelled to deliver a ruling where the party who initially invoked the court’s jurisdiction pursuant to a judicial review procedure which gives effect to the Article 11 of the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”), can apply to have the proceedings struck out. In an interim judgement handed down by Mr. Justice Simons, the ruling was confined to the issue of whether a decision by the Court of Justice on the interpretation of the EIA Directive was necessary to enable the High Court to give judgment on the issue which has arisen in the proceedings before it. The main proceedings are currently stayed pending the determination of the reference by the Court of Justice. The proceedings sought to challenge a decision to grant development consent for a large-scale residential development in Clane, Co.Kildare. One of the principal grounds of challenge advanced in the proceedings involved a contention that An Bord Pleanála had failed to comply with its duty to state the “main reasons and considerations” for its decision to grant permission. It was alleged this was a breach both of domestic law and of 2011/92/EU. On the third day of the hearing, it was indicated to the Court that a settlement had been reached between the parties. The applicants applied for leave to strike out the proceedings with no further order which was supported by the Respondents and the Notice Party. The Court raised doubts in relation to whether it had jurisdiction to strike out the proceedings where it had a concern over a potential breach of the EIA Directive. Settlement of proceedings All parties to the proceedings advanced both written and oral submissions to the effect that there was a public interest in the settlement of legal proceedings, and that the court should not depart from its “passive” role in litigation. Mr. Justice Simons noted at para 64: ‘‘64…In nearly any other case, those submissions would have persuaded me to accede to an application to strike out the proceedings. On the peculiar facts of the present case, however, the precise obligations imposed upon a national court by the EIA Directive are not acte clair, and a reference to the Court of Justice is necessary to enable me to rule upon the application to strike out the proceedings.’’ The question of whether a national court should abandon its normal passive role in proceedings in order to raise issues of EU environmental law ex officio was considered by the Court. The issue was previously considered by Advocate General Kokott in Case C-416/10 Krizan in a different factual context. The Opinion in Krizan was considered by Simons J and it was contended that the rationale underpinning the Opinion had been undone by two recent developments. Firstly, the distinction between (i) a complete dispensation with an environmental impact assessment, and (ii) a defective environmental impact assessment, has been rejected by the Court of Justice in Case C-72/12, Altrip. Secondly the robust approach taken in cases such as Case C-261/18, Commission v. Ireland (Derrybrien Wind Farm) was cited as a further factor. The absence of an express proviso from the EIA Directive, stating that a development consent is to be invalid in the event of defects in the environmental impact assessment, would appear to be of less relevance post-Derrybrien. At Para 39 of the draft reference, Simons J offered the view of the High Court in referring the matter concluding that it should refuse an application to strike out the proceedings if certain conditions are met: ‘’39…Where a national court’s jurisdiction to review the substantive and procedural legality of a development consent pursuant to Article 11 of the EIA Directive has been invoked, the national court should refuse an application to strike out the proceedings if the following conditions are met (i) the pleadings in the case are closed and the hearing of proceedings has commenced; (ii) there is a prima facie case that the development consent has been granted in breach of the public participation provisions of the EIA Directive; and (iii) the national court already has available to it the legal and factual elements necessary to rule on the substantive or procedural legality of the impugned development consent and would be able to do so without going beyond the case as pleaded by the parties. In a scenario where these conditions are met, the national court should refuse to strike out the proceedings. The parties should then be offered the opportunity to complete the hearing in the ordinary way, but if they decline this offer, the court should then proceed to prepare its judgment.’’ The three questions referred for a preliminary ruling address the issue of the obligation on a national court to take all measures necessary, within the sphere of its competence, to remedy the failure to carry out an environmental impact assessment in accordance with the EIA Directive in line with the standard prescribed by the CJEU in Case C-201/02 Wells2. Subsequent legal developments There have been two significant legal developments since the interim judgement in this case was handed down. Firstly, Advocate General Kokott has delivered an Opinion in Case C-254/19 Friends of the Irish Environment Limited v An Bord Pleanála, pending before the CJEU and appears to have identified a similar obligation to that identified by Simons J in Dempsey at para 60: 60. The reference to the express assertion of a specific plea suggests applying the case-law on the obligation of courts to examine certain question of their own motion. According to that case-law, while EU law does not require national courts to raise of their own motion a plea alleging infringement of provisions of EU law where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding EU rules only where, under national law, they must or may do so in relation to a binding rule of national law.[1] The Advocate General went on to note at para 69 that: “69. In any event, the obligation of a national court to interpret national law as far as possible in accordance with EU law does not require that the parties to the proceedings before it expressly assert that specific interpretation, if those parties allege at least an infringement of the relevant provisions of EU law.” The mention by AG Kokott of the Court interpreting EU law of its own Motion would seem to support the contention that the High Court going forward may be compelled to assume a more investigative position or provide greater oversight than it would ordinarily have done in such circumstances. That is to say, a Court may be permitted to determine certain issues relating to breaches of EU law in circumstances where they have not been expressly pleaded by parties to the proceedings. Secondly, the Attorney General has requested that the drawing up of the Order for the Article 267 TFEU reference in the Dempsey case be adjourned until 5 June 2020 to consider if it would be appropriate, to issue an application to the court to be joined to the proceedings as a notice party. The formal order for a reference was not to be drawn up until the issue of the Attorney General’s participation in the proceedings before the High Court has been resolved. The Attorney General was given liberty to bring a Motion to be joined to the proceedings. The Motion was to be issued before Friday 5 June 2020 with a return date of 19 June 2020. At the time of writing it was not yet apparent, what involvement if any the Attorney General was going to have in the proceedings. Conclusion These proceedings represent a novel development in that this issue had never been previously raised by a Court in the context of querying whether it was appropriate to strike out proceedings where the parties indicate that a settlement has been reached in public law proceedings. If the reference is maintained view of the referring Court is answered in the affirmative by the CJEU, there is potential for a significant change in the conduct of planning and environmental judicial review proceedings going forward. In any such case, where a settlement might have been hoped for, such a settlement would need to be effected when the proceedings are at an earlier stage of gestation, perhaps even before the filing of opposition papers. In the interim, if a settlement is to be ruled in such proceedings, parties would need to inform the Court of the Dempsey case and the view of Mr. Justice Simons on the matter. The judgment of the Court of Justice on the Article 267 TFEU reference will provide significant clarity on whether the public interest in judicial review proceedings concerning EU Law requires the Court to rule on the legality of a development consent in circumstances where all parties to the proceedings seek to have the matter settled. [1] Judgments of 14 December 1995, van Schijndel und van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 13, 14 and 22); of 24 October 1996, Kraaijeveld and Others (C‑72/95, EU:C:1996:404, paragraphs 57, 58 and 60); of 12 February 2008, Kempter (C‑2/06, EU:C:2008:78, paragraph 45); and of 26 April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraphs 32 and 35).


27 July 2020

C-434/16 – Nowak—exam scripts constitute ‘personal datA'

Updated: 3 August 2021

In December 2017, the CJEU gave a ruling which has widespread applicability to examination appeals in schools and in colleges across the EU. Mr. Nowak was hired by PWC in June 2006 and had signed an open-ended employment contract with the firm to work as a trainee accountant in the business advisory services department. It was a term of his employment that he successfully complete three examinations required to become a fellow member with Chartered Accountants Ireland (CAI). Having passed two of those exams, Mr. Nowak had failed the exam for Strategic Finance and Management Accounting, which was an open-book exam. He repeatedly sat this exam four times and was unsuccessful at each and every subsequent attempt. Mr. Nowak attempted to challenge the results and this was rejected by the Irish Institute of Chartered Accountants, which had set the examinations. In May 2010, Mr. Nowak submitted a data-access request pursuant to Section 4 of Irish Data Protection Acts, 1988 and 2003 requesting all his personal data held by CAI. Section 4 (1) of the Data Protection Act, 1988 states (a) Subject to the provisions of this Act, an individual shall, if he so requests a data controller in writing (i) be informed by the data controller whether the data kept by him include personal data relating to the individual, and (ii) be supplied by the data controller with a copy of the information constituting any such data, It should be noted that there is no such provision contained in the Data Protection Act, 2018 and that Article 15 of the General Data Protection Regulation must be relied upon at present. Where the CAI had complied with the request in June 2010, they refused to disclose his exam scripts to him citing that the scripts did not constitute ‘personal data’ within the meaning of the Data Protection Act, 1988 (as amended) Despite making a complaint to the Office of the Data Protection Commissioner (now the Data Protection Commission) the Data Protection Commissioner identified no contravention of the relevant Acts. Mr. Nowak in exercising the domestic legislation appealed the decision to the Circuit Court, which, in a written judgment, also found no basis for his appeal and rejected his appeal against the Data Protection Commissioner. Mr. Nowak’s further appeals were dismissed by the High Court and the Court of Appeal (the latter in a an ex tempore judgment). Nevertheless, Mr. Novak applied for and obtained leave to appeal to the Supreme Court. Although minded to uphold the views of all three courts below that examination scripts do nto contain personal data, , the Supreme Court recognised that the issue was not clear and made a reference to the CJEU seeking clarification whether an examination script can constitute “personal data” within the meaning of Directive 95/46/EC (the “Directive”) Article 2(a) of the Directive defines personal data as meaning ‘any information relating to an identified or identifiable natural person’. Under the same provision, ‘an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;’ CJEU Ruling The CJEU held that that written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data under Article 2 of the Directive. The Court rejected (paragraph 30) the Data Protection Commissioner's submission as to the relevance of whether an examiner can or cannot identify the candidate at the time when he/she is correcting and marking the examination script. It referred to Advocate General Kokott in her opinion at point 26 where she had differentiate between exams questions and that of a survey questionnaire, where the answers of a survey, unlike the answers in an examination, are understood to remain anonymous. Recalling that the concept of 'personal data' in EU law is wide and varied, the CJEU focused on whether written answers provided by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute information relating to that candidate, as required by the definition of 'personal data' in Article 2(a) of the Directive. It accepted Mr Nowak's argument, which was supported by most of the Member States (save Ireland and Poland) and the Commission, that written answers submitted by a candidate at a professional examination, as well as the comments of the examiner with respect thereto, constitute information that is linked to him or her as a person (see paragraphs 30 to 46) . In this regard, the CJEU stated at paragraph 49: “Accordingly, if information relating to a candidate, contained in his or her answers submitted at a professional examination and in the comments made by the examiner with respect to those answers, were not to be classified as ‘personal data’, that would have the effect of entirely excluding that information from the obligation to comply not only with the principles and safeguards that must be observed in the area of personal data protection, and, in particular, the principles relating to the quality of such data and the criteria for making data processing legitimate, established in Articles 6 and 7 of Directive 95/46, but also with the rights of access, rectification and objection of the data subject, provided for in Articles 12 and 14 of that directive, and with the supervision exercised by the supervisory authority under Article 28 of that directive.” The Court further stated that, where the data subject is entitled to erasure of their data under the Directive, that right does not extend to affording the exam candidate the right to correct a posteriori an answer or to remove an answer from such an exam. The CJEU recalled, however, that "the protection of the fundamental right to respect for private life means, inter alia, that any individual may be certain that the personal data relating to him is correct and that it is processed in a lawful manner" (at paragraph 57) And at paragraph 62, the CJEU concluded: “In the light of all the foregoing, the answer to the questions referred is that Article 2(a) of Directive 95/46 must be interpreted as meaning that, in circumstances such as those of the main proceedings, the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data, within the meaning of that provision”. Conclusion Despite the fact that the judgment in C-434/16 Nowak was delivered pre-GDPR, the principles under consideration in Nowak remain broadly the same under the new GDPR regime. This is, in effect, referenced by the CJEU in paragraph 59 of its judgment. Educational institutions should be cognisant of their obligations, in light of Nowak, in considering any student data access requests for examinations scripts.


20 May 2020

CASE C-237/19 GÖMBÖ— CJEU delivers IP judgment

Updated: 3 August 2021

CASE C-237/19 GÖMBÖC— CJEU delivers IP judgment regarding shapes necessary to give a technical result under the Trade Mark Directive In April 2020, the Court of Justice of the European Union (CJEU) issued its ruling in Case C-237/19, Gömböc, ECLI:EU:C:2020:296, on the interpretation of Article 3(1)(e)(ii) and (iii) of the Trade Mark Directive, 2008/95, now Article 4(1)(e)(ii) and (iii) of Directive 2015/2436. This was a preliminary ruling in proceedings between the Hungarian Intellectual Property Office (HIPO) and Gömböc Ktf regarding the rejection by the HIPO of the application for registration of a three-dimensional mark as a national mark. The interpretation by the CJEU of the grounds for refusal, concerning the prohibition of registration of signs consisting exclusively of the shape of goods, which is necessary to obtain a technical result and which gives substantial value to the goods, has been problematic in intellectual property law.[1] What is a Gömböc? A gömböc is the name of a Hungarian food similar to Scottish haggis, made of pork and cheese. In a Hungarian folk tale, the Gömböc devours the members of a family one after the other, until the youngest son slits it open from the inside with a penknife. For the purposes of the court proceedings and the trademark, it is a convex three-dimensional homogenous body that when resting on a flat surface has just one stable and one unstable point of equilibrium. The Russian mathematician Vladimir Igorevich Arnold wondered whether three-dimensional objects with only two equilibrium points exist. In the mathematical field it was believed that the minimum number was four. However, Hungarian engineers proved this wrong by creating the gömböc, with only two equilibrium points which always returns to its initial position on a horizontal surface. Essentially, a self-righting object similar to a roly-poly, though unlike a roly-poly, the object lacks counterweight. Background Gömböc Kft applied for a Hungarian national trademark for the shape of the Gömböc for Class 14 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June, 1957, as well as ‘decorative crystal ware and chinaware’ and ‘toys’ in Classes 21 and 28. This application was rejected by the HIPO on the basis that the shape gave substantial value to the decorative items in Classes 14 and 21 and that it was necessary to achieve a technical function for toys, for which the self-righting function was relevant. This decision was appealed to the Metropolitan Court and a request was made for a referral to the CJEU which was refused on the ground that there was sufficient case law available. This decision was affirmed on a further appeal to the Court of Appeal, in which it was determined that the shape has aesthetic value and did not agree that substantial value can be based on scientific significance. On further appeal, the Supreme Court of Hungary decided to refer questions to the CJEU for a preliminary ruling asking: 1) Is Article 3(1)(e)(ii) of Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks to be interpreted as meaning that, for signs which consist exclusively of the shape of goods, (a) it can only be examined if the shape is necessary to obtain the technical result sought on the basis of the graphic representation contained in the register, or (b) can the perception of the relevant public also be taken into account? In other words, can it be taken into account that the relevant public is aware that the shape for which registration is sought is necessary in order to obtain the technical result sought? 2) Is Article 3(1)(e)(iii) of Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks to be interpreted as meaning that the ground for refusal is applicable to those signs which consist exclusively of the shape of goods and in respect of which it can be determined whether the shape gives substantial value to the goods, bearing in mind the perception or knowledge that the buyer has of the goods represented graphically? 3) Is Article 3(1)(e)(iii) of Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks to be interpreted as meaning that the ground for refusal is applicable to signs which consist exclusively of a shape (a) that, by virtue of its individual character, already enjoys the protection conferred on designs, or (b) whose aesthetic appearance alone gives the goods any kind of value? First Question: The CJEU confirmed that the competent authority must carry out a two-step inquiry for the correct application of the ground for refusal established in Article 3(1)(e)(ii).[2] The first step refers to the proper identification of the essential characteristics of the three-dimensional sign at issue. The identification of the essential characteristics begins with the assessment of the graphic representation; however, the competent authority may also take into account other information “such as surveys or expert opinions, or data relating to intellectual property rights conferred previously in respect of the goods concerned.”[3] The second step considers whether the characteristics identified perform a technical function. Even though all the essential characteristics required to obtain a technical result are not shown in the representation, the ground for refusal established under Article 3(1)(e)(ii) may apply “provided that at least one of the essential characteristics required to obtain that technical result is visible in the graphic representation of the shape of that product”.[4] This step need to take into consideration, where appropriate, the additional features relating to the function of the goods in question. This information must be objective and reliable and can include “surveys or expert opinions on the function of the product, any relevant documentation such as scientific publications, catalogues and websites, which describe the technical features of the product”.[5] As a result, the perception of the public may be a relevant criterion only for the identification of the essential characteristics but not for assessing whether the characteristics perform a technical function. The CJEU opined that the public may not have the expertise to accurately determine the technical features of the product and to what extent the shape of the product contributes to the technical result.[6] Only objective and reliable information may be taken into consideration. Second question: The CJEU held that the “perception or knowledge of the relevant public” is not a decisive element when applying the ground for refusal set out in Article 3(1)(e)(iii) but, may only be used for identification of the essential characteristics. In the proceedings, the knowledge of the relevant public related to the fact that the product depicted had become “the tangible symbol of a mathematical discovery”.[7] Article 3(1)(e)(iii() may also apply if it is shown through objective and reliable evidence that the consumer’s decision to purchase the product is to “a very great extent, determined by one or more features of the shape which alone forms the sign”.[8] Characteristics of the product not related to its shape are irrelevant to the assessment. Third question: The Court clarified that the ground for refusal established in Article 3(1)(e)(iii) must not be applied “systematically to a sign which consists exclusively of the shape of the product where that sign enjoys protection under the law relating to designs or where the sign consists exclusively of the shape of a decorative item”. Thus, the CJEU confirmed the coexistence of multiple forms of legal protection, noting, that the regimes “are independent, without any hierarchy existing as between.”[9] Conclusion The existence of a registered design over the Gömböc does not imply the automatic refusal for trademark registration, providing that that conditions for registration of that sign as a trademark are satisfied. The ground for refusal under Article 3(1)(e)(iii) cannot be applied automatically when the sign at issue consists exclusively of the shape of a decorative item but must be apparent from “objective and reliable evidence that the consumer’s decision to purchase the product in question is based to a very large extent on one or more characteristics of that shape.” The CJEU held that the substantial value of the decorative items may result from factors not related to its shape, such as “the story of its creation, its method of production, whether industrial or artisanal, the materials that it contains, which may be rare or precious, or even the identity of its designer.”[10] For this ground of refusal to apply, it must be apparent from objective and reliable evidence that the consumer’s decision to purchase the product was based to a very large extent on one or more characteristics of the shape, which is a matter for the competent authority. [1] This has proved to be an issue in a number of cases; Case C-48/09 Lego Juris v OHIM; Case C-163/16 Christian Louboutin SAS v Van Haren Schoenen BV; Hauck v Stokke Case C-205/13 [2] Case C-237/19 para 28 [3] Ibid para 29 [4] Ibid para 32 [5] Ibid para 34 [6] Ibid para 35. The concern for the Court was the risk that the public may undermine the objective pursued by the ground for refusal of registration provided for in the Directive, namely to prevent trade mark law from granting an undertaking a monopoly on technical solutions or functional features of a product. [7] Ibid para 43 [8] Ibid para 41 [9] Ibid para 54 [10] Ibid para 60

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01 May 2020

C 18/18 Eva Glawischnig-Piesczek v Facebook Ireland

C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland: ECJ broadens the obligation on social media providers to remove and to prevent unlawful content on their platforms In C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland, the ECJ has significantly broadened the obligation on social media providers to remove and to prevent unlawful content on their platforms. In C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland, the Plaintiff, a Green Party politician in Austria, sought an injunction against Facebook regarding a defamatory post entitled “Greens: Minimum income for refugees should stay” published on Facebook. The Plaintiff notified Facebook of the defamatory post and when Facebook failed to act expeditiously, the Plaintiff sought injunctive relief against Facebook seeking the removal of the defamatory post and/or posts of an equivalent nature. The Austrian Supreme Court sought a preliminary reference on the extent of Facebook’s obligation to remove unlawful content under the E-Commerce Directive. Decision of the ECJ The ECJ ruled that the prohibition on general monitoring obligations under Article 15 of E-Commerce Directive does not preclude national courts from ordering host providers to remove identical and, in certain circumstances, equivalent comments which were previously declared to be unlawful, or to block access to that information, irrespective of who requested storage of that information. The ECJ, in adopting the reasoning of the Opinion of Advocate General Szpunar, drew a distinction between general monitoring— which an Internet Service Provider (“ISP”) is not obliged to do under Article 15(1) of the E-Commerce Directive— and monitoring in a specific case— which an ISP may be obliged to do so provided certain criteria are satisfied. The ECJ held at para 33-37: “33 In the first place, the referring court asks, in essence, whether Article 15(1) of Directive 2000/31 precludes a court of a Member State from ordering a host provider to remove or block access to information which it stores, the content of which is identical to the content of information which was previously declared to be illegal. 34 In that regard, although Article 15(1) prohibits Member States from imposing on host providers a general obligation to monitor information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity, as is clear from recital 47 of that directive, such a prohibition does not concern the monitoring obligations ‘in a specific case’. 35 Such a specific case may, in particular, be found, as in the main proceedings, in a particular piece of information stored by the host provider concerned at the request of a certain user of its social network, the content of which was examined and assessed by a court having jurisdiction in the Member State, which, following its assessment, declared it to be illegal. 36 Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network. 37 In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.” The ECJ also addressed the issue of prior restraint orders. The ECJ was asked to consider whether Article 15(1) of Directive 2000/31 precluded a court of a Member State from ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information. The ECJ ruled that Article 15(1) of Directive 2000/31 does not preclude national courts from granting prior restraint orders against ISPs to remove information with an equivalent meaning provided that: (a) the content remains essentially unchanged when compared with the content which gave rise to the finding of the illegality and contains the elements specified in the injunction (para.41 and para.45 of the judgment); and (b) the ISP would not be required to carry out an independent assessment of the content and could have recourse to independent search tools and technologies to identify content of an equivalent nature (para.46 of the judgment). Moreover, the ECJ held that E-Commerce Directive does not preclude national courts from granting injunctions producing worldwide effects so long as they are accordance with international law. The ECJ concluded at para 48-52: 48 In the third place, although the referring court does not provide any explanations in that regard in the grounds for its order for reference, the wording of the questions which it addressed to the Court suggests that its doubts also concern the issue whether Article 15(1) of Directive 2000/31 precludes injunctions such as those referred to in paragraphs 37 and 46 above from being able to produce effects which extend worldwide. 49 In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive. 50 Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide. 51 However, it is apparent from recitals 58 and 60 of that directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level. 52 It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules. Conclusions C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland will increase the regulatory burden on social media providers to remove and to prevent unlawful content on their platforms, particularly content which has gone viral. The upshot of C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland will mean that social media platforms will be subject to tougher controls in regulating unlawful content uploaded by users onto their platforms—including content which is defamatory, in breach of copyright or in breach of privacy. Moreover, the ECJ clarified that the E-Commerce Directive does not preclude injunctions having a worldwide effect— a significant ruling in strengthening the armoury of national courts. The ECJ clarifies that under the E-Commerce Directive (i) social media platforms may be the subject of monitoring orders in specific instances; (ii) social media platforms may be the subject of prior restraint orders to remove unlawful content of an equivalent nature; and (iii) social media platforms may be the subject of injunctions having worldwide effect. C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland certainly represents a shot in the arm in the regulation of data on social media platforms—and certainly is not the last say of the ECJ on the matter.


22 April 2020

C-94/18 - Chenchooliah—CJEU clarifies the rights of residence of third country nationals

Updated: 3 August 2021

On 10 September 2019, the CJEU delivered a significant ruling affecting spouses of EU citizens, who had previously exercised their treaty rights in Ireland. The matter arose from a preliminary reference from the Irish High Court in the case of Chenchooliah v Minister for Justice [2019] IEHC 735. Issue The main issue was whether the removal of a third country national who was previously a beneficiary of derivative rights by virtue of an EU-citizen spouse exercising their free-movement treaty rights in this jurisdiction under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015, but whose spouse had since left the jurisdiction, could now be removed from Ireland under purely national immigration procedures, under section 3 of the Immigration Act 1999 (as amended), or whether such persons should be dealt with by way of removal order under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015), and what safeguards were applicable to any such removal. Preliminary reference The High Court made a preliminary reference to the CJEU on 16 January 2018 in relation to the matter. The Grand Chamber determined that Ms Chenchooliah had ceased to be a beneficiary under the Directive once her husband had departed from Ireland. However, Ms Chenchooliah still came within the scope of the Directive, because it contained conditions for both the grant of the right of residence as well as rules around when a right of residence is lost. The CJEU stated that article 15 of the Directive and the procedures provided for by articles 30 and 31 apply to all decisions restricting free movement of Union citizens and their family members, unless there is a justification for limitation, provided for by the Directive. A member state may not impose a ban on entry under any circumstances, which would be the effect of any deportation order relying solely on Irish national law. The Court concluded that to find otherwise would deprive article 15 of its substance and practical effect. Effect Upon being listed by the High Court in October 2019, the substantive matter was struck out on consent, the CJEU’s judgment having effectively dealt with the substance. The applicant was successful in obtaining her costs. Spouses of EU citizens whose EU-citizen spouse has stopped exercising EU treaty rights in Ireland, and to whom a deportation order under section 3 of the Immigration Act 1999 (as amended) was issued, would now have grounds to seek the revocation of that deportation order. Counsel for the Applicant: Conor Power SC and Ian Whelan BL Counsel for the State Respondent: Noel Travers SC and Sarah-Jane Hillery BL


19 January 2020

EUBA Paris conference

The EUBA held its annual conference in Paris on 8–9 November 2019, in association with the Paris Bar. On the Friday night we were hosted by the Paris Bar for dinner in the Maison du Barreau itself, which is located on the Île de la Cité, just opposite the Palais de Justice. The tone of the evening was set when Paul McGarry SC, Chair of the EUBA, gave a short speech in French thanking our hosts for the warm welcome and Stéphane de Navacelle of the Bar Council of Paris responded in English. The following morning conference delegates were back in the Maison du Barreau for the main business of the conference, along with coffee and choux buns. Judge Françoise Kamara, conseiller doyen of the Première chambre civile de la Cour de Cassation, chaired the opening panel on State aid and national fiscal measures. Papers were given, on the Irish side, by Judge Colm Mac Eochaidh of the General Court and Suzanne Kingston BL and, on the Parisian side, by Thomas Picot and Thierry de Bovis. The speakers considered, among other issues, the extent to which the State aid rules apply to tax rulings, the policy position of the European Commission on tax harmonisation and the position taken by the Court of Justice, in particular in the World Duty Free cases. Later in the day Mr Justice Robert Haughton, newly of the Court of Appeal, chaired a panel on commercial dispute resolution after Brexit. Paul McGarry SC gave an overview of the Commercial Court in Ireland and Patrick Leonard SC analysed the possibilities opening up for both the Bar of Ireland and the Paris Bar post-Brexit. Judge François Ancel, president of the International Commercial Chamber of the Court of Appeal in Paris, then gave us an insider’s view on the workings of this new Parisian court that allows pleading in English. Finally, Jacques Bouyssou of the Paris Bar took an overview what Paris had to offer international litigants. Before the conference dinner on the Saturday night, delegates had a few hours to enjoy Paris in the sunshine, which for some involved going to take a look at the ongoing repair work on Notre-Dame at the other end of the Île de la Cité, following the fire earlier this year. Thanks are due to the committee of the EUBA and to Aoife Kinnarney, as well as to those involved from the Bar Council of Paris, for organising a fantastic conference that succeeded on all levels.

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26 November 2019

ERA: Litigating European Union Law Conference

The Academy of European Law (ERA) based in Trier, Germany runs a seminar for EU lawyers bi-annually which seeks to train lawyers in how to litigate EU law. The Bar of Ireland sponsors two practitioners with an interest in EU law to attend this seminar on a bi-annual basis. I was fortunate enough to attend the two day seminar in Trier and in Luxembourg last April along with Hannah Godfrey BL. The seminar comprises of two elements: a one day intensive course in the ERA’s training facilities in Trier and a one day interactive visit to the CJEU in Luxembourg. The course seeks to give practitioners a grounding in the practice and procedure of the CJEU. The ERA invites EU law experts drawn from across the EU Member States to give a number of mini-courses to participants. All courses are delivered in English. For example Gráinne Gilmore BL gave an insightful course on the practical aspects of litigating a preliminary reference before the ECJ. Other courses focused on how to a litigate a case before the General Court. Participants are given a EU law case study which they must solve in groups and present to the class. The first day concludes with a conference dinner which is a great opportunity to interact with EU lawyers from across the Member States. Participants will also have time to explore Trier as part of the conference. Trier, the oldest city in Germany, is a delightful place to visit. The Roman ruins in Trier are a UNESCO world heritage which are dotted all around city. Trier is also the birthplace of Karl Marx and his house in the centre of Trier is home to the Karl Marx Museum. The second day of the ERA conference comprises a trip to the CJEU in Luxembourg. The Palais of the Court of Justice is located on the Plateau de Kirchberg. As part of the visit, we received a guided tour of the building and we attended a hearing before the CJEU. Prior to attending our designated hearing in the CJEU, we were briefed on the facts of the case by a référendaire. We observed a hearing of a preliminary reference from the Belgian courts on an issue of EU tax law being heard in French. Language is no barrier in the CJEU. The translation services in the CJEU are unparalleled as every seat in each court room is fitted with headphones where citizens can hear a translation of the case being heard before the court in their language of their choice. I would highly recommend the ERA’s seminar on Litigating European Union Law to members of the Law Library with an interest in EU law. EU law is no longer a niche subject which can be ignored depending on your practice area. The scope of EU law is ever-growing as evidenced by the multiple preliminary references made by the Irish Courts every year to the CJEU. Given the importance of EU law in the Irish legal system, a visit to the CJEU will help to cement your understanding of EU law. The ERA’s seminar on how to litigate EU law is a brilliant opportunity for any Irish practitioner who wishes to expand their knowledge of EU law. Any practitioner interested should apply via the EUBA (EU Bar Association) and the application occurs bi-annually on a rolling basis. Feel free to contact me via my Law Library email should you have any questions.

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Patrick Fitzgerald BL

26 November 2019

The role of the CJEU in a post-Brexit UK: an Irish perspective

The jurisdiction of the CJEU in the British legal system is on borrowed time: either the UK crashes out of the EU in October bringing an immediate end to the jurisdiction of the CJEU or the jurisdiction of the CJEU will be prolonged to the end of the transition period. In these uncertain times, Irish legal history may provide some insight in reflecting on the ongoing legal transition process in the UK, in particular when considering the role of the CJEU in a post-Brexit UK.

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12 April 2019

Commercial Dispute Resolution in Europe after Brexit Event - 5 April 2019

The EUBA held its annual conference at the Dublin Dispute Resolution Centre, The Distillery Building on Friday 5th April 2019. The conference was opened by Micheál P. O'Higgins, Chairman of the Council of The Bar of Ireland and Paul McGarry SC, Chairman of the EUBA. As the United Kingdom leaves the European Union, Advocate General Gerard Hogan considered the challenges for Ireland and the Common Law as he presented the topic of 'Protecting the Common Law in the Post Brexit EU'. Since the accession of Ireland and the United Kingdom to the European Union, the UK has been a powerful voice in support of the Common Law. Just as the Common Law has learned a lot from European union Law, the CJEU has felt the strong influence of the Common Law. In the afternoon session, a panel of international speakers led the topic on 'Post Brexit Commercial Dispute Resolution in the EU.' In January 2019, the Government adopted the Legal Services Brexit Initiative led by the Council of The Bar of Ireland in conjunction with the Law Society of Ireland to support and promote the Irish legal system in the context of Brexit, with a particular focus on commercial law. France, Germany and the Netherlands have also taken steps to promote their legal systems for commercial dispute resolution post Brexit and have each created Commercial Courts for the resolution of disputes in English. Pictured below, the panel of international speakers (L-R) Ulrike Willoughby, Presiding Judge, Chamber for International Commercial Disputes, Frankfurt, Attorney General, Seamus Woulfe SC, Chairperson: The Hon. Ms. Justice Caroline Costello, Duco Oranje, President of the Netherlands Court of Appeal, Emilie Vasseur, Darrois Villey, Paris, and Jacques Bouyssou, Alerion.

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