The Court of Justice Consolidates Its Constitutional Role in the Field of Personal Data

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1 Giandonato Caggiano The Court of Justice Consolidates Its Constitutional Role in the Field of Personal Data In the field of personal data protection, the role of the Court of Justice of the European Union (CJEU) as a constitutional guardian seems to be central and strategic, not only on a European, but on a global scale. In fact, the CJEU has not only played the role of supreme recourse in the Union system to safeguard the supranational integration, but it played the role of judicial reviewer at all level of the balancing between the respect of fundamental rights and the general interest in the security, through the assessment of the necessity and proportionality of the measures taken at European and national level. The recognition of the Charter of fundamental rights as a source of primary law has contributed decisively to the latest developments in its case-law in the matter. 1

2 Adelina Adinolfi The Role of the EU Charter of Fundamental Rights in National Case-law: Some Thoughts for a Tentative Systematic Assessment The widespread and increasing role of the EU Charter in national case-law reveals a multifaceted reality, which spreads from a merely formal reference to the Charter to a truly substantive role of it in ensuring protection of fundamental rights. The article, mostly based on the outcomes of a European project, attempts a short review of the case-law aimed to detect and discuss the main different ways the Charter is used in national judicial decisions. 2

3 Maria Caterina Baruffi When Italy Crosses the UK: An Overview of the Application of Brussels IIa Regulation in the Italian Legal Order As the future UK s withdrawal from the EU will bear an unprecedented impact on the system of cross-border family disputes within the European area, this paper chooses to focus on some critical issues emerged from the Italian case law on Brussels IIa Regulation by analysing selected decisions rendered in cases between Italy and the UK. In this regard, the relevant provisions of the Regulation on both matrimonial matters and parental responsibility are dealt with. In addition, some final considerations on the Brussels IIa Recast proposal are provided in order to assess its prospective practical application. 3

4 Concetta Brescia Morra The Administrative Review of Decisions of the ECB in the Supervisory Field The paper examines the administrative review of the ECB decisions in the banking supervisory field. In the first paragraphs the core characteristics of the functioning of the internal administrative review carried out by the Administrative Board of Review (ABoR) are described. The paper highlights the differences between the ABoR and similar bodies that are already in place for reviewing decisions of some European agencies. The final paragraph proposes some reflections on the role of the Board, also in light of the remarks expressed by the General Court in the case Landeskreditbank Baden- Wüttemberg Förderbank v. ECB of 16 May The ABoR is an administrative body and cannot be regarded as a court. It is part of the decision-making process of the ECB. 4

5 Francesco Cherubini The Principle of Equality among Member States of an International Organisation and Its Exceptions: The Peculiar Case of the European Union There are many expressions commonly used to outline the regimes aimed to differentiate the position of some Member States of the European Union, in specific areas of cooperation: multi-speed, multi-track, à la carte, concentric circles Europe; or groups of stronger integration, avant-gardes, directories ; differentiated or flexible integration, differentiated application and enhanced cooperation. The purpose of the present contribution is to provide a possible way out of this laberinto semántico, using some categories of the law of International Organisations. 5

6 Gianpaolo Maria Ruotolo Non-personal Data: The Surfacing of Big Data in European Union Law The paper analyzes the framework for the protection of and from big data in European Union law. In particular, it deals with both its relationships with EU market regulations (mainly in antitrust and consumers protection issues) and EU governance (focusing on the potential benefits that could arise from using big data as a public governance tool), and underlines the arising risks of discrimination of groups and minorities. Further, it investigates the possibility of conceiving EU collective protection instruments against big data abuses, given the inapplicability to the latter of the rules of the general data protection regulation (GDPR). 6

7 Caterina Fratea Incompatible or Unlawful State Aids and Effectiveness of Damage Compensation: Some Considerations between European Union Law and National Case-law By analysing the most recent European and Italian case-law, this paper focuses on the damage compensation of the market operators who suffered an economic loss following the breach of EU rules on State aids. Three kinds of scenarios are investigated: the action brought by a competitor towards the public authority who awarded the aid; the action brought by a competitor towards the beneficiary of the aid; and the action brought by the beneficiary towards the State for the damage suffered because of the recovery of the illegitimate aid. Whilst the first and third case can be framed in the more general State responsibility for the breach of EU law, the second is the least EU-related one since the Court of Justice denied, unlike what happened with Articles TFEU, a right to damage compensation directly derived by the EU law. 7

8 Nicola Ruccia How Unconventional Is the Single Resolution Board in the Framework of EU Agencies? The aim of this paper is to evaluate whether, and to what extent, the Single Resolution Board a specific Union agency with a specific structure corresponding to its tasks departs from the model of Union agencies stemming from the Meroni doctrine. To this end, it first defines, in general terms, Union agencies and resolution for banks. Secondly, it analyses the main features and the legal personality of the SRB. Thirdly, the paper examines the external dimension of the SRB, with particular regard to its relation with non-participating Member States, the EBA and third countries as well as to the recognition and enforcement of third country resolution proceedings. 8

9 Giovanni Cellamare Observations on the European Court of Human Rights Judgment in the Case N.D. and N.T. v. Spain The present article examines the ECtHR ruling in the case of N.D. and N.T. v. Spain. The applicants, a Malian and an Ivorian national, crossed the border fence between Morocco and the Spanish enclave of Melilla. Upon getting off the fence, they were halted by the Spanish Guardia Civil and pushed-back to Morocco. The Court declared that they had been under the continued and exclusive control of Spanish authorities and then under their de facto jurisdiction. Therefore, the Court rejected the Spanish Government s view that the events had occurred out of Spain s jurisdiction. The Court reiterated that Article 4 of Protocol No. 4 (prohibition of collective expulsions) requires that the personal circumstances of every person concerned be individually considered. In this case the removal of the applicants breached Article 4. Lastly, the immediate expulsion established sufficient grounds to generate a violation of the right to an effective remedy (Article 13 ECHR) that would have allowed the applicants to submit a complaint asserting a violation of Article 4. The judgment casts serious doubts about the conformity of the 2015 reform ( ley Orgánica 4/2015 ) of the Immigration Act 4/2000 with the ECHR. The ley Orgánica gives legal basis to the Spanish push-back practice. 9

10 Valeria Di Comite Family Reunification and the Right of Residence of Nationals of Third Countries Familiars of EU Citizens in the Light of the Best Interest of the Child The right to family reunification has always been considered essential for an effective freedom of movement of citizens. Now this right is conferred to EU citizens by the Directive No. 2004/38, which states precise conditions. In some cases, the Court of justice has exceptionally recognized, exclusively on the base of Article 20 TFEU, the right to reside in a member State to relatives especially parents of EU citizens especially children. This article examines this right of residence guaranteed by the secondary law, taking into account case law interpreting the relevant provisions of the Treaties, of the Directive No. 2004/38 and of the Regulation No. 2011/492. We focus also on the specific additional protections afforded both by EU legislation and by the Court of Justice to family members especially children in to make their rights autonomous from those of the mobile EU citizen so they may continue to reside in the host State even if the EU citizen leaves that Member state. 10

11 Simone Marinai EU, Climate Change and Arctic Security Matters The effects of climate change and, in particular, global warming with the consequent ice melting, have underlined the strategic role of the Arctic region for the European Union. Easier access to raw materials and potential growth in intercontinental maritime traffic are some of the positive effects that climate change may imply. In parallel with such effects, climate change might produce several negative consequences in terms of security. The aim of this article is to assess whether EU action can be deemed suitable for responding to the challenges of climate change and, in particular, to their impact on Arctic security. Firstly, the impact of climate change on the Arctic is considered. Second, the impact of climate change on Arctic security issues is discussed. Then, what the EU has done, or can do to limit climate change and to address Arctic security is examined, while stressing the need for the EU to develop its Arctic policy through a careful and balanced approach. 11

12 Gabriele Asta The Chowdury Case before the European Court of Human Rights: A Shy Landmark Judgment on Forced Labour and Human Trafficking In its 30 March 2017 judgment in Chowdury and Others v. Greece, the First Chamber of the European Court of Human Rights (ECtHR) unanimously held that there had been a violation of Article 4(2) of the European Convention of Human Rights (ECHR), namely the provision that prohibits forced labour. The judgment represents an important contribution in many ways. Inter alia, it constitutes the favorable epilogue for the applicants and it is an important addition to the still relatively limited Strasbourg case-law on Article 4 ECHR. Nonetheless, the judgment is not immune to criticism. In particular, the article focuses on the shortcomings in the ECtHR s legal reasoning concerning both the identification of a situation of forced labour and human trafficking and the assessment of Greece s compliance with its positive obligations. Besides that, the lack of clarity characterising the ECtHR s reasoning is likely to have repercussions beyond the specific case, influencing, in perspective, the seminal relevance of the judgment. 12

13 Davide Piancone Taking of Evidence and the intra- European Provisional Measures in Light of the Novelties Introduced by Regulation (EU) No. 1215/2012 on the Free Movement of Judgments in the European Judicial Area Taking of evidence before the commencement of the proceedings may be pursued in two alternative ways, within the limits and conditions established by the respective legal instruments: the cooperation between the Courts, governed by Regulation (EC) No. 1206/2001, and the request for provisional measures directly to the foreign Court, by introducing the process in compliance with Regulation (EU) No. 1215/2012 (Brussels I bis Regulation). The interplay between such rules needs to be interpreted according with the effet utile principle, in order to dissolve the apparent contradictions introduced by the recast of the Brussels I bis Regulation and to safeguard the free circulation in the European judicial area of evidence taken ante causam. 13

14 Silvia Scarpa The EU Arctic Policy and the Recognition of Its Observer de facto status in the Arctic Council The European Union first sought after admission as an observer in the Arctic Council in However, the decision on this issue was postponed until the 2013 Kiruna ministerial meeting, when the eight Arctic states granted a de facto status as observer to the European Union, pending the solution of a dispute with Canada on the EU ban on the commercialization of seal products. However, even if Canada lifted its veto during the 2017 Fairbanks meeting, Russia objected to the EU admission as an observer. In the meantime, the EU makes slow progress towards the development of an integrated policy for the Arctic region. 14