EU Law Monitor

EU Law Monitor - Issue 2

The second edition of our European Law Monitor examines a number of recent decisions and policy initiatives relating to EU law, including: (i) The recent fine levied against Ireland by the ECJ for failing to carry out an EIA at the site of a windfarm in Co. Galway; (ii) the question as to whether the GDPR should be amended to deal with companies occupying a dominant position within the meaning of Art 102 TFEU; (iii) the potential impact on human rights law of a 'no-deal' Brexit; and (iv) the issue as to whether or not lawyers who have qualified in other Member States have a right of audience before the Irish courts.

 

Ireland fined for failing to carry out EIA in respect of Derrybrien wind farm

On Tuesday 12 November, in European Commission v Ireland (C-261/18), the Grand Chamber of the ECJ levied fines against Ireland for failing to give ‘concrete effect’ to an earlier judgment from 2008. This earlier decision had found that Ireland had contravened Directive 85/337 in failing to carry out an environmental impact assessment (‘EIA’) at the site of Derrybrien wind farm in Co. Galway.

When the wind farm was built in 2003 it was among the largest in Europe. Sitting at the foot of the Slieve Aughty mountains, the wind farm soon became embroiled in controversy not long after it was erected, after a landslide occurred on the site in the same year – causing damage to farms and businesses in the area and disrupting the community generally.

In any event, where a Member State has authorised a project in breach of the obligation to carry out a prior EIA, they are then required to take ‘all measures necessary’ to remedy this shortcoming. In short, an assessment must be taken for regularisation purposes which would allow the operator of the wind farm to claim ex post facto compliance with the Directive.

One of the arguments that Ireland put forward to justify this failure to comply was that a legitimate expectation had accrued on the part of the wind farm operator that they would be able to continue operating the wind farm. In any event, the wind farm was controlled and operated by Ireland.

In light of the ‘seriousness and duration of the failure’ to carry out an EIA, Ireland was issued with pecuniary penalties in the order of a €5m lump sum payment, which will increase by €15k every day that the fine is not paid.

 

Dominant companies: Should they be subject to increased privacy obligations?

Speaking at the Future of Privacy Forum at Vrije Universiteit Brussels on November 19, Giorgio Monti of Tilburg Law School addressed the question as to whether stronger data protection requirements should be levied against companies which occupy strong positions in their respective markets.

Dominant companies like Facebook, Monti alleges, have been flouting data protection laws and as such, stronger measures need to be put in place to countermand this. In support of this, Monti referred to the recent action taken by Germany’s Bundeskartellamt (Federal Cartel Office) against Facebook which related to the issue of combining third-party data and placing it together with information already gathered from the data subject’s use of Facebook-owned websites. It was found that additional, voluntary consent would be needed to do this.

Monti went on to argue that while this was already a violation of GDPR, what would be interesting is this could also be seen as a violation of Article 102 TFEU, which prohibits companies from abusing their dominant position in a way that is prejudicial to consumers. There seems, then, to be somewhat of a disconnect between what these two areas of EU law are trying to achieve. It would be entirely conceivable for data to be processed in a way that is consistent with the GDPR (legitimate basis and so on) while being wholly prejudicial to consumers in a way that is incompatible with Article 102.

The obvious solution to this would be to strengthen the data processing requirements to apply in circumstances where the party occupies a dominant position. This would necessitate co-operation between competition authorities and data protection bodies, as it would have to be first determined whether a particular company could be considered ‘dominant’ enough for Article 102 to apply. But alas, it may be years before EU policymakers begin to even entertain the idea of reforming the still-nascent GDPR.

 

Brexit will have ‘worrying implications’ for cross-border human rights – Senior Barrister

Writing in the latest edition of The Bar Review, Derek Kenneally SC contends that the prospect of a no-deal Brexit – which still lingers ominously in the background amidst the fanfare of the latest set of Westminster elections – could have a negative impact on the progress made in criminal justice and human rights.

Mr Kenneally outlines his belief that it is not just the Good Friday Agreement which helps keep the peace in Northern Ireland, but that EU initiatives like the common travel area and European Arrest Warrant system have been equally important in preventing a re-emergence of the old fault lines. It is important to see how a comprehensive exit strategy will need to be agreed that deals with these issues specifically, while also ensuring that business interests and the needs of agriculture are also upheld.

The European Arrest Warrant system, which allows for more efficient cross-border policing in greatly expediting the extradition system, is subject to the jurisdiction of the ECJ. The PSNI are one of the more active users of the EAW system, but while they may wish to retain the use of it, this will hardly be politically palatable to a UK government so adamant on leaving the scrutiny of the ECJ behind them. In the absence of an agreement which provides to the contrary, the default position for extradition would be the 1957 Convention. However, as clarified by Minister for Justice and Equality v RO [2018], the triggering of Article 50 has no effect on the current operation of the EAW system and it will only cease to operate from the point in time that the UK actually leaves the EU.

The preamble of the Good Friday Agreement notes that Ireland and the UK have a commitment to work together with one another ‘as friendly neighbours and as partners in the EU’. Though the second aspect of that sentence may be soon severed, the sentiment is not diluted as the agreement will remain entirely workable – provided we continue to work towards solutions on the basis that we are friendly neighbours.

 

Klohn v An Bord Pleanála [2019] IESC 66

The question which arose in this case was whether a German Rechtanswalt (legal counsel) has a right of audience before the Irish courts without having to work in conjunction with a locally trained lawyer. Previously, Mr Klohn had represented himself several times in the long and meandering history of this dispute. However, he hired German representation for his appearance before the ECJ and now sought to retain the same counsel for the present action.

In the underlying action, substantial costs had been awarded against Mr Klohn. He sought to instruct his German counsel to appeal this determination on his behalf. The relevant provision of EU law here is the Lawyer’s Services Directive (77/249/EEC), as transposed by the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979. Regulation 5(1) of the latter provides:

‘Activities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in the State by a visiting lawyer under the conditions laid down for lawyers established in the State, save that he shall not be required to be resident, or registered with a professional organisation, in the State, or to hold a practising certificate…’

This is made subject to a caveat contained in Regulation 5(2)(a) that visiting lawyers shall observe the applicable rules of professional conduct of the State within which they are acting, insofar as they govern oral presentation in court and other general rules of conduct. The regulations also provide that visiting lawyers are entitled to use the professional title from which they come, translated into the language of the Member State in which they are now seeking to have a right of audience.

Of particular interest for this case is also Practice Direction SC11, which lays out certain procedures to be followed by lawyers from other Member States seeking a right of audience before the Irish courts. Under this Practice Direction, it was necessary for Mr Klohn’s representative to file an affidavit. She duly complied with this requirement. That said, Regulation 6 indicates that there is a general requirement for non-Irish qualified lawyers to appear before Irish courts ‘in conjunction with’ an Irish-qualified lawyer, and this was a major bone of contention in this case. However, it was contended in Commission v Germany limits this to cases where this is necessary. Mr Klohn’s lawyer argued that this requirement should not apply in instances where the party would be permitted to represent himself.

Clarke CJ concluded that the Rechtanswalt was prima facie entitled to offer legal services in Ireland provided she complied with the Regulations. As to the question of whether this requirement to appear ‘in conjunction with’ an Irish-qualified lawyer applies, Clarke CJ noted:

‘For the reasons set out earlier in this judgment, I am of the view that the answer to that question is a matter of Union law in respect of which the answer is not clear. It follows that it is necessary to refer the matter to the CJEU under the provisions of Article 267 of the Treaty on the Functioning of the European Union.’

A decision was made to draft a proposed Order of Reference and circulate this amongst the interested parties. They were given over two months to make submissions. A reference has been requested of the ECJ.

 

And finally… Anthony Whelan to advise Ursula Von Der Leyen on ‘digital society’

President-elect of the European Commission, German politician Ursula von der Leyen, has appointed Anthony Whelan as chief advisor on digital society for her term commencing on 1 December 2019. Mr Whelan previously served as Director for Electronic Communications Networks and Services at the European Commission.

Mr Whelan, previously a lecturer at Trinity College Dublin, is a qualified barrister and has worked as a lawyer at the European Court of Justice and in the Legal Service of the European Commission. Mr Whelan takes on the wide portfolio of ‘digital society’ at a very crucial time, considering the rapid rise of online consumerism and the ever-present need to protect vulnerable parties contracting online.

 

 

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