2019-03 Prof DR Hartmut Aden HWR-FÖPS Berlin Course Presentation Pune Symbiosis Law School PDF

Welcome!
European Law in Context
Symbiosis Law School

Pune, India
March 2019
Source:
http://www.referenceforbusiness.c
om/photos/european-union-eu-
555.jpg
Prof. Dr. Hartmut Aden

Who is who?
Who am I?
(see also my website: www.hwr-berlin.de/prof/hartmut-aden)
Who is who in the class?
Have you already been to Europe? (Where and why?)
What would you like to learn in my class?
Source:
555.jpg

To start!
What do you already know about
 Europe
 The European Union
 European Union Law
 The Council of Europe
Please brainstorm in groups with 2 or 3 students!

The EU – a complex thing?
Questions:
Which institutions exist in Europe?

How do they overlap? Impact of the Brexit?
http://www.youtube.com/watch?v=O37yJBFRrfg
Source:
555.jpg

The EU and related institutions in Europe
Source: http://upload.wikimedia.org/wikipedia/commons/thumb/1/1a/Supranational_European_Bodies-en.svg/500px-
Supranational_European_Bodies-en.svg.png
Source:
http://www.nationsonline.org/
oneworld/europe_map.htm
What is EU governance
The political systems

of the European Union and of Germany compared:
multilevel governance and federalism
Source:
555.jpg

What is EU governance
What is governance??? What is EU governance???

What is multilevel governance???
Source:
555.jpg

Government and governance
Government Governance
(= narrower term) (= broader term)
Political system (polity) with Way in which governments,

a legislator, administrators companies, NGOs,
and courts (in a democratic international organisations
polity) etc. act

EU governance as multilevel governance
International Organisations/other forms of global

governance
European Union
Member States
Sub-national polities, e.g. regions, German Länder

Historical institutionalism: How to explain continuity
and change?
Historical institutionalism
(public policy and public administration theory): Current
institutions (norms, state organisations...) can be at least
partly explained by looking at how they came into being
and how they developed.
Path dependency: Critical junctures

Explaining continuity by the Explaining change by specific
path opened by decisions situtions that interrupt path
from the past dependency (examples: 9/11, 2001;
end of the East-West-Conflict; a
major economic crisis)

Dimensions for Analyzing European Integration
Dimensions for analyzing European Integration in a

historical-institutionalist perspective/
path-dependencies
Treaties Member States Institutional

structure
Interconnections

Dimension I: The Treaties
1951 (1952): Treaty of

1957 (1958) Treaty of Rome
Paris: European Coal and establishing the European 1957(1958):
Steel Community (ECSC) Economic Community (EEC) EURATOM Treaty
1965 Merger Treaty: Common Council and Commission
1986 (1987) Single European Act
1991 (1993) Treaty of Maastricht (European Union)
1997 (1999) Treaty of Amsterdam
2001 (2003) Treaty of Nice
2007 (2009) Treaty of Lisbon

Dimension II: The Member States
1957 EEC 6: + BeNeLux, France, Germany, Italy
1973 EEC 9: + Denmark, Ireland, United Kingdom
1981 EEC 10 + Greece
1986 EEC 12 + Portugal, Spain
1995 EC/EU 15 + Austria, Finland, Sweden
2004 EC/EU 25 + Czech Republic, Cyprus, Estonia, Latvia,

Lithuania, Hungary, Malta, Poland, Slovenia, Slovakia
2006 EC/EU 27 + Bulgaria, Romania … 2019? EU 27 + Post-

2013: EU 28: Croatia Brexit EU? …

The EU from 1993 to 2009 and since 2009
– establishment and abolishment of the 3 pillars
EU
1993-2009 EU = European Union
E(E)C = European
JHA/
E(E)C CFDP Economic
AFSJ Communitie(s)
CFDP = Common
Foreign and Defense
supranational intergovernmental
Policy
JHA = Justice and

Home Affairs
EU since December 2009 AFSJ = Area of
(integrating the former three pillars) Freedom, Security
and Justice

Dimension III: General institutional structure
1957 EEC
1991 (1993) Maastricht-EU: 3 Pillars
2007 (2009) (new) European Union

How to find EU laws?
Official European Union Website with all current and

previous versions of EU laws:
https://eur-lex.europa.eu/homepage.html
Case law: Court of Justice of the EU:
http://curia.europa.eu/juris/recherche.jsf?language=en
Source:
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German Federalism and EU governance
German Federalism
and EU Governance
Source: http://www.taz.de/!105662/
Source: http://www.bbr.bund.de/BBR/DE/Bauprojekte/Berlin/Politik/BR/bundesrat.html

German Federalism and EU governance – historical
background
Year Event
1866/1867 Northern German Alliance (Norddeutscher Bund)
1871 First German Reich (federal structure)
1933-1945 Abolition of federalism by the fascist regime
1949 Federal Republic of Germany and German Democratic

Republic
1957 The Federal Republic of Germany as a founding
member auf the European Economic Community
(EEC)
1990 German reunification: Federal Republic of Germany

Federal structure before 1990
East German West German

State Federal State
10 States (Länder)
+ Berlin (West)

German Democratic
Federal Republic Republic and Berlin (West)
of Germany (until 1990) (until 1990)
Federal structure since 1990 (reunification)
Federal State
16 States
(Länder)
Decision and law making in the German federal
system
Two institutions involved

in law making (not two
parliamentary chambers)
Bundestag (members directly

elected by the citizens)
Source: http://www.taz.de/!105662/
Bundesrat (representatives
from the Länder governments;
not directly elected by the
citizens)
Source: http://www.bbr.bund.de/BBR/DE/Bauprojekte/Berlin/Politik/BR/bunde

Source: http://www.bundestag.de/htdocs_e/bundestag/function/legislation/index.html
Bundesrat: Composition and decision making
Article 51 GG
[Composition – Weighted voting]
(1) The Bundesrat shall consist of members of the Land governments,
which appoint and recall them. Other members
of those governments may serve as alternates.
(2) Each Land shall have at least three* votes; Länder with more
than two million inhabitants shall have four**, Länder with
more than six million inhabitants five***, and Länder with
more than seven million inhabitants six**** votes.
(3) Each Land may appoint as many members as it has votes.
The votes of each Land may be cast only as a unit and only
by Members present or their alternates.
[69 votes in total; * Bremen, Hamburg, Saarland

** all other Länder
*** Hessen Source: http://sat-feeds.donut.tv/t452-deutscher-bundesrat-live
**** Baden-Württemberg, Bayern, Niedersachsen, Nordrhein-Westfalen]

Cooperative Federalism
Cooperative federalism characterised by
 Strong political and administrative coordination
 General interest in homogeneous conditions of living
 Interwoven and interdependent structures
[other extreme form of federalism: conflicting federalism

(e.g. Belgium)]

Article 23 GG (Grundgesetz – German Constitution)
Please read Article 23 of the Basic Law:
Which rights does Article 23 attribute to
 the Bundesrat (Federal Council)?
 The Länder (States)?

German Länder and European Integration: extract
from Article 23 of the Basic Law (German Constitution)
“[…] (1a) The Bundestag and the Bundesrat shall have the right to bring
an action before the Court of Justice of the European Union to
challenge a legislative act of the European Union for infringing the
principle of subsidiarity. The Bundestag is obliged to initiate such an
action at the request of one fourth of its Members. […].
(2) The Bundestag and, through the Bundesrat, the Länder shall
participate in matters concerning the European Union. The Federal
Government shall keep the Bundestag and the Bundesrat informed,
comprehensively and at the earliest possible time.
(3) Before participating in legislative acts of the European Union, the
Federal Government shall provide the Bundestag with an opportunity to
state its position. The Federal Government shall take the position of the
Bundestag into account during the negotiations. Details shall be regulated
by a law. […]“

“[…] (4) The Bundesrat shall participate in the decision-making

process of the Federation insofar as the subject falls within the
domestic competence of the Länder.
(5) Insofar as, in an area within the exclusive competence of the
Federation, interests of the Länder are affected, and in other matters,
insofar as the Federation has legislative power, the Federal Government
shall take the position of the Bundesrat into account.
To the extent that the legislative powers of the Länder, the structure of
Land authorities, or Land administrative procedures are primarily affected,
the position of the Bundesrat shall be given the greatest possible
respect in determining the Federation‟s position consistent with the
responsibility of the Federation for the nation as a whole. […].”

“[…] (6) When legislative powers exclusive to the Länder concerning

matters of school education, culture or broadcasting are primarily
affected, the exercise of the rights belonging to the Federal Republic of
Germany as a member state of the European Union shall be delegated by
the Federation to a representative of the Länder designated by the
Bundesrat.
These rights shall be exercised with the participation of, and in
coordination with, the Federal Government; their exercise shall be
consistent with the responsibility of the Federation for the nation as a
whole. […]”

German Federalism and the European Union
The EU-multi-level system: similarities to a federal state
Consequences for the German federalism:
 Regional Parliaments (Landtage; Abgeordnetenhaus) are

loosing influence
 Federal Council (Bundesrat): trying to intervene more often in

the EU law-making process
Germany – towards “double federalism”? – States, Federal

State, EU

Interconnections between the 3 dimensions
Interconnections (e.g.)
 New areas of coordination made the E(E)C/EU more attractive for

new member states.
 More member states need another institutional structure (e.g.
modes of decision making).
 Reforms of the institutional structure require treaty reforms.

Law-making in the EU
Law-making in the
European Union multilevel system
- from unanimity decision-making to the Ordinary
Legislative Procedure (co-decision)

EU Primary and Secondary Law
Primary law = founding treaties:

 Treaty on European Union (TEU)
 Treaty on the Functioning of the EU (TFEU)
 Euratom Treaty [not treated in this class]
Secondary law:
 Legal acts based issued by European institutions

based on the treaties

Law making in the EU: types of legal acts
Please read Article 288 TFEU
Please find out and discuss:

1) Which types of legal acts are mentioned in Article 288?
2) Which are the differences between these types?
3) Does the EU have other types of legal acts that are not
listed in Article 288 TFEU?
Please work in groups with 2 or 3 students.

Law-making in the EU: types of legal acts
Article 288 (ex Article 249 TEC)

To exercise the Union's competences, the institutions shall adopt
regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its

entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each

Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods.
A decision shall be binding in its entirety. A decision which specifies

those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.

Law-making in the EU: types of legal acts
Article 288 Other legal acts Soft law, e.g.

TFEU
Regulations International Green papers/

agreements, white papers
Directives Articles 216,
217 TFEU Communications
Decisions
Delegated non- Recommendations
Recommendations
legislative acts
(Article 290) Opinions
Opinions
Selection? Article 296 or

policy-related articles

EU Regulations
A regulation shall have general application. It shall be binding in

its entirety and directly applicable in all Member States (Article
288 (2) TFEU).
Example:
REGULATION (EC) No 1907/2006 OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL of 18 December 2006 concerning the
Registration, Evaluation, Authorisation and Restriction of Chemicals
(REACH), establishing a European Chemicals Agency, amending
Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93
and Commission Regulation (EC) No 1488/94 as well as Council Direc-
tive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC,
93/105/EC and 2000/21/EC, OJ EU L 396 of 30.12.2006, p. 1. [German:
Verordnung]

Directives
A directive shall be binding, as to the result to be achieved, upon each

Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods (Article 288 (3) TFEU)
Example:
DIRECTIVE 2003/87/EC OF THE EUROPEAN PARLIAMENT AND OF

THE COUNCIL of 13 October 2003 establishing a scheme for greenhouse
gas emission allowance trading within the Community and amending
Council Directive 96/61/EC, OJ EU L 275 of 25.10.2003, p. 32.

Law making in the EU: the Ordinary Legislative
Procedure
How does the Ordinary Legislative Procedure work?
Please look at the

 Flow chart
 Article 294 TFEU
and take notes, working in group with 2 or 3 students.

Law making in the EU: the European Parliament‟s role
The European Parliament’s role:
Questions:
 Which are the European Parliament’s powers in the law-
making process according to the Parliament‟s video?
 Is the Parliament‟s presentation convincing for you?
http://europarltv.europa.eu/en/player.aspx?pid=e7ada5b2-b940-4286-b051-a2d7011dcc05

Law making in the EU: Who is the legislator?
EU-legislation: the ordinary

legislative pocedure (ex-co-
decision procedure)
Initiative:
European Commission
Informal governance practice
e.g.:
 Consulting Member States
and interest groups
Decision making  Trilogue (COM, EP, Council)
European Parliament and the
Council

The supremacy of EU law over domestic law
EU law Domestic law

Conflict/contradiction
Priority given
to EU law
Domestic law
will not be
applied in that
case

EU law and domestic law
 The Supremacy of EU law as a cornerstone of a

supranational legal order
 The primacy of EU law over the law of the Member States
(ECJ cases since Costa ./. ENEL; now Treaty of Lisbon,
Declaration 17)
 Principle of conferral (Article 5 (1) TEU)

Institutional actors involved in EU law-making I:
The European Commission
European Commission
(Article 17 TEU, Articles 244-250 TFEU
 Currently: 28 Commissioners (including the President of the

Commission) – option to be reduced from 2014 was not used)
 23.000 staff
 Divided in Directorate Generals and Central Services
Monopoly to initiate the law-making

process
(exception: Article 76 TFEU)

The European Parliament
European Parliament
Article 14 TEU, Articles 223-234 TFEU
 From 2014: 751 MEPs

 Minimum 6 MEPs, maximum 96 MEPs per member state
(degressively proportional in relation to the number of
inhabitants)
Decision-making power – together

with the Council – in the ordinary
legislative procedure

The Council (of ministers)
Council (of ministers)

(Article 16 TEU, Articles 237-243 TFEU
 1 representative of each member state at ministerial level

 Different configurations (Article 236 TFEU; currently: General
Affairs; Foreign Affairs; Economic and Financial Affairs (ECOFIN);
Justice and Home Affairs (JHA); Employment, Social Policy, Health and
Consumer Affairs; Competitiveness (internal market, industry, research
and space) ; Transport, Telecommunications and Energy; Agriculture
and Fisheries; Environment; Education, youth, culture and sport)
Decision-making power –– in the ordinary legislative

procedure together with the European Parliament

The Commission, the EP and the Council?
Are “the EP”, “the Commission” and “the Council”

uniform/homogenous actors in the EU law-making process?
Legally yes: Empirically no:

They have duties People working in these
and rights as institutions have different
uniform actors experiences, interests,
accord to the political preferences, …
Treaties

EU environmental governance
EU environmental law and

governance
Source: http://environmentalgovernance.org/featured/2012/03/implementing-
environmental-law-would-save-europe-e50-billion/

The (De-)Composition of Environmental Policy and
Law
Core fields
 Nature conservation
 Air pollution
 Noise
 Water pollution
 Soil
 Waste
 Chemicals/dangerous substances
 Genetically modified organisms (GMOs) Source:
http://www.euractiv.com/climate-
environment/draft-pollution-law-seeks-
Source: tackle-news-532450
http://www.news4tea
chers.de/2013/03/zu At the boundaries to other fields of policy and law
m-weltwassertag-
900-millionen-  Energy
menschen-haben-
kein-sauberes-
trinkwasser/wasser/
 Agriculture
 Health
 Consumer Protection
Climate change: towards an autonomous policy field?
(in the EU: COM-GD Climate Action)

Development of European Environmental Policy and
European Environmental Law:
Selected historical cornerstones
 Growing sensibility for environmental problems around 1970

 Stockholm Conference 1972
 First EC Environmental Action Programme 1973
 Directives in the following years
 Single European Act
 Treaties of Maastricht and Amsterdam (environmental
matters in the co-decision procedure)
 UN Rio Conference 1992; Johannesburg 2002; Rio 2012
(Rio+20)

Environmental Law Making since the 1970s
1970s: Environmal Law making without an explicit base in the

Treaties:
 Before the Single European Act: Opening clause (Article 352
TFEU = ex-Article 308 TEC)
1980s:
 After the Single European Act: ex-Articles 130 r-t, sometimes
Article 100a (then 95) TEC, now Article 114 TFEU
 Conflicts resulting from the selection of the “correct” legal
base (see Directives on Environmental Sanctions/penal law)
Treaty of Lisbon: Articles 191-193 TFEU (very similar wording

compared to ex-Articles 130 r-t EC Treaty

Articles 191 – 193 TFEU
1) Please read Articles 191 to 193 TFEU
2) Please discuss and note answers to the following

questions:
a) Which objectives does the Treaty define for European
environmental policy?
b) Where and how do these articles reflect the principle of
subsidiarity?
c) Which areas of environmental policy are excluded from the
ordinary legislative procedure? Political reasons?
d) Is the EU allowed to be a contracting party of
international/global environmental treaties?

Environmental Law Principles
Article 191 TFEU Principles

 Polluter pays principle
 Prevention principle
 Precautionary principle
 Specific for EEL: Source Principle
Other Principles (partly contested)

 Integration Principle
 Co-operation Principle

European Environmental Law: Products and
Production
EU Environmental Regulation
Products e.g. Production e.g.
 Rules on noise limits  Emission limits

 Rules on prohibited  Environmental impact
ingredients assessment

EU environmental law related to chemicals
The role European Environmental Law in

the EU multilevel system: the REACH and
CLP regulations and their impact on the
international trade of chemicals
Source: http://environmentalgovernance.org/featured/2012/03/implementing-
environmental-law-would-save-europe-e50-billion/

Starting point
You are working for a company in India exporting chemical

products to Europe.
Which rules will your company have to comply to?

EU law on chemicals and dangerous substances
Starting points (selection)

 Directive 67/548/EEC : classification, packaging and
labelling of dangerous substances [numerous
modifications since then] – now CLP Regulation
 Directive 76/769/EEC: certain dangerous substances and
preparations
 Regulation (EC) No 793/93: evaluation and control of the
risks of existing substances
Since 2006:
 REACH: Registration, Evaluation, Authorisation and
Restriction of Chemicals

Gefahrstoffe – Übersicht – Umsetzung – Diskussion – Fazit
EU legal instruments for dangerous

substances (selection)
REACH CLP BIOCIDES POP PIC
Registration, Classification, Availability Persistent Import and

Evaluation, Labelling and (and Organic Export of
Authorisation Packaging of restriction) of Pollutants Hazardous
of Chemical Substances Biocides on Chemicals
and Mixtures the Market
Regulation Regulation Regulation Regulation Regulation

(EC) no. (EC) no. (EU) no. (EC) no. (EU) no.
1906/2007 1272/2008 528/2012 850/2004 649/2012
Based on UN
Globally
Harmonised
System (GHS)
EU law on chemicals and dangerous substances
 Regulation (EC) No 1907/2006 REACH: Registration,

Evaluation, Authorisation and Restriction of Chemicals
 Integration of all “existing” substances into the evaluation/risk
assessment (if minimum quantities are exceeded)
 Politically very contested
 Complex regulation (278 pages in the Official Journal)

REACH Regulation (2006)

• Starting point:
REACH – Lack of information on chemicals
– Evaluation slow in not effecient
Registration,
• „No data – no market“ Principle
Evaluation,
Authorisation
• Access to information for consumers
of Chemical • Restriction or even substitution of hazardous substances
Stages:
• Registration
Regulation
(EC) no. • Evaluation
1906/2007
• Authorisation and – if necessary – restrictions
For importers:
Registration of the substance in one EU Member State only
(that will then coordinate evaluation and registration with the
European Chemicals Agency (ECHA) and the other Member
States
CLP Regulation 2008

CLP Regulation (2008)
CLP • Based on the United Nations„ Globally Harmonised System
(GHS)
Classification, • Objective: high level protection for people and environment
Labelling and
Packaging of • Binding since 1 June 2015
Substances • CLP regulates:
and Mixtures
– Criteria for the classification of substances and mixtures
– Packaging and lablleing rules for hazardous substances
Regulation – Specific labelling for certain mixtures
(EC) no.
1272/2008 https://www.youtube.com/watch?v=w6AGdbcLGlM
https://www.youtube.com/watch?v=bfpAZcrILao
CLP Regulation: Labelling of hazardous substances
and mixtures
Hazard symbols
Hazard communication (globally standardised)

Hazard statements
200 row = physical hazards Precautionary statements
300 row = health hazards 100 row = general measures
400 row = environmental hazards 200 row = precautionary measures
300 row = recommendations
400 row = storage
500 row = disposal
EU data protection and privacy law
The rights to data protection and privacy in

Germany and in the EU - and the new EU
General Data Protection Regulation - the EU as
a role-model for other parts of the world?

EU data protection and privacy law – Germany as a
forerunner since the 1980s
Germany since the 1980s – the German

Constitutional Court’s landmark census case
(BVerfGE 65, 1)

Bad experiences in history with government institutions
collecting information about citizens...

Protection of fundamental rights by the German
Constitutional Court (Bundesverfassungsgericht)
Protection of fundamental rights by the

German Constitutional Court
(Bundesverfassungsgericht)
 German political system characterised by

a strong constitutional court (with the
authority to annul parliamentary laws and
government decisions)
 Constitutional complaint open to

everybody (Article 93 (1) no. 4a)
 Similarities to individual applications

before the European Court of Human
Rights

Background of the 1983 Constitutional Court judgment
establishing the right to “informational self-determination”
 Periodical census (Volkszählung, now replaced by a micro-census)

and compulsory citizens’ registration (Meldepflicht) in Germany
 Early 1980s: Government plan to update citizens’ registration

and to combine it with the census
 Social movement against this plan
 1983: Census stopped by the Constitutional Court: landmark

judgment: BVerfGE 65, 1

1983: The Constitutional Court establishes the right to
“informational self-determination”
“1. Given the context of modern data processing, the protection of

individuals against unlimited collection, storage, use and transfer
of their personal data is subsumed under the general right of
personality governed by Article 2.1 in conjunction with Article 1.1 of the
Basic Law (Grundgesetz - GG). In that regard, this fundamental right
guarantees in principle the power of individuals to make their own
decisions as regards the disclosure and use of their personal data.
2. Restrictions of this right to "informational self-determination" are
permissible only in case of an overriding general public interest.
Such restrictions must have a constitutional basis that satisfies the
requirement of legal certainty in keeping with the rule of law. The
legislature must ensure that its statutory regulations respect the
principle of proportionality. The legislature must also make provision for
organizational and procedural precautions that preclude the threat of
violation of the right of personality.” (BVerfGE 65, 1)

Articles 1+2 of the Constitution (Grundgesetz)
Article 1 [Human dignity – Human rights – Legally binding force of

basic rights]
(1) Human dignity shall be inviolable. To respect and protect it shall
be the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable
human rights as the basis of every community, of peace and of
justice in the world.
(3) The following basic rights shall bind the legislature, the executive and
the judiciary as directly applicable law.
Article 2 [Personal freedoms]
(1) Every person shall have the right to free development of his
personality insofar as he does not violate the rights of others or
offend against the constitutional order or the moral law.
(2) Every person shall have the right to life and physical integrity.
Freedom of the person shall be inviolable. These rights may be
interfered with only pursuant to a law.

Article 1 (1) + Article 2 (1) = Informational self-
determination
Establishment of a new fundamental right – combining
 Human dignity (Article 1 (1) and

 The right to free development of the personality (Article 2
(1))

Articles 7 + 8 EU Charter of Fundamental Rights
Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life,
home and communications.
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning
him or her.
2. Such data must be processed fairly for specified purposes and on
the basis of the consent of the person concerned or some other
legitimate basis laid down by law. Everyone has the right of access to
data which has been collected concerning him or her, and the right to
have it rectified.
3. Compliance with these rules shall be subject to control by an
independent authority.

EU data protection legislation: the GDPR
General Data Protection Regulation (EU) 2016/679 –

entered into force on 25 May 2018
 Going back to a COM proposal presented in January

2012 (= long first reading; final compromise in the
Trilogue negotiations December 2015)
 Why does the EU need this Regulation?
 What is different compared to the situation before

(Directive 95/46/EC)?
 Parallel Directive (EU) 2016/680 for data protection in

agenda/en/news/building-tomorrow%E2%80%99s- the area of policing and criminal justice
Source: http://ec.europa.eu/digital-
e-commerce-call-action-smes-and-e-tailers

GDPR – important principles (Article 5 GDPR)
 Purpose limitation
 Lawfulness of and fairness of data processing
 Data minimisation
 Transparency (see also Article 12 GDPR)
 Accuracy
 Storage limitation
 Integrity and confidentiality
 Accountability
agenda/en/news/building-tomorrow%E2%80%99s-

GDPR – multilevel accountability: the European Data
Protection Board
 European Data Protection Supervisor (EDPS)

 Independent Data Protection Authorities (DPAs) in the
Member States
 Joint supervisory function: cooperation in the European
Data Protection Board (successor of the Article 29 Groupe)

GDPR – interesting rights and tools
 Informed consent (Article 7)

 Information and access (fort he data subject) (Articles 13-15)
 Right to rectification (Article 16)
 Right to be forgotten/right to erasure (Article 17)
 Right to data portability (Article 20)
 Data breach notification (Articles 33 to 34)
 Data protection assessment (Article 35)

E-Privacy
European law related to E-Privacy (electronic communication)

 So far: E-Privacy Directive 2002/58/EC
 Draft E-Privacy Regulation (January 2017); trilogue negotiation
started; adaptation to the General Data Protection Regulation (EU)
2016/679 [and to Directive 2016/680 for policing and criminal justice]
 Cookies
 Tracking
Source:
https://www.tecnologia.net/c
omo-activar-el-gps-en-
android/

Regulating geo-location for commercial purposes
Only loosely regulated:

 Data collection and processing mostly without the consumers‟
knowledge
 Consumer‟s explicit consent not always required
Problems:
 Limits of national (and European) regulation?
 How to organise informed consent (according to the GDPR and the
future ePrivacy Regulation requirements?)
Source:
https://www.tecnologia.net/c
omo-activar-el-gps-en-
android/

CJEU landmark cases on data protection and privacy
Starting point: Treaty of Lisbon: Charter of Fundamental

Rights now binding
 CJEU, case C-293/12 and C-594/12: Data retention case:

Proportionality (judgment of 8 April 2014)
 CJEU, case C-131/12: Right to be forgotten/Google (judgment
of 13 May 2014)
 CJEU, case C-362/14: Safe harbour/Schrems (judgment of 6
October 2015)
 CJEU, opinion 1/15: PNR EU-Canada agreement (opinion of 26
July 2017)

EU law related to e-commerce
e-commerce
 Facilitating online trade
 Directive 2000/31/EC […]on certain legal aspects of
information society services, in particular electronic
commerce, in the Internal Market (Directive on electronic
commerce)
 Digital Agenda for Europe http://ec.europa.eu/digital-
agenda/en/digital-europe (part of the Europe 2020
strategy)
 E-privacy directive 2002/draft e-privacy regulation 2017

EU law related to IT security/cyber security
IT security/cyber security
 Establishment of ENISA -the European Union Agency for

Network and Information Security (established in 2004)
located at Heraklion (Crete/Greece)
 Critical information infrastructure protection (COM(2011)
163 final)
 EU Cyber Security Strategy 2013 (including a proposal for
a directive)
 Europol: Establishment of the European Cybercrime
Center (EC3) in 2013
Source:
https://www.europol.europa.eu/ec
3

The institutional structure of the Post-Lisbon-EU : The
Court of Justice of the EU and EU governance
Proceedings before the Court of Justice of the

European Union (CJEU) and options for strategic
NGO litigation.
Source: http://www.ukipdaily.com/european-court-justice/
Source: http://curia.europa.eu/jcms/jcms/P_36470/les-deux-tours

The Post-Lisbon EU Courts
Court of Justice 8 Advocate

(Article 19 TEU and 251 TFEU) Generals
Grand Chamber Chambers Full Court
General Court
(Formerly Court of First Instance)
(Articles 254-256 TFEU)
Source:
http://europa.eu/r
apid/press-
release_CJE-14-
European Civil Service Other specialised courts to
15_en.htm
Tribunal be established
(Article 257 TFEU)

Main types of proceedings before the EU Courts
Assignment
https://www.youtube.com/watch?v=4xdvXvlwhDQ
Source:
http://europa.eu/r
apid/press-
release_CJE-14-
15_en.htm

Main types of proceedings before the EU Courts
Actions for anullment

Article 263 TFEU (ex-Artilce 230 TEC)
Preliminary reference proceedings

Article 267 TFEU (ex-Article 234 TEC)
Infringement Proceedings
Source:
http://europa.eu/r
apid/press-
Articles 258-260 TFEU (ex-Articles 226-228 TEC)
release_CJE-14-
15_en.htm

The Preliminary Reference Proceedings
Litigant
Legal Action Judgment
Domestic Court
Question(s) Answer(s)/Judgment
ECJ
Source:
http://europa.eu/r
apid/press-
release_CJE-14-
15_en.htm

Types of Preliminary Reference Proceedings
Domestic Court
Obligation to refer Discretion

If no judicial remedy if remedy under
under national law national law
Exceptions: Acte Exception if the Court
clair/Acte éclairé considers a EU
measure as invalid
Source:
http://europa.eu/r
apid/press-
release_CJE-14-
15_en.htm
ECJ

Annulment actions (Article 263 TFEU)
EU institutions or Member Individuals/legal entities

States (only against an act
(alleged violation of the addressed to them or of
Treaties, lack of competence, direct + individual concern)
etc.)
Annulment action
Judgment: Annulment, partial annulment or

rejection

Infringement Proceedings (Articles 258-260 TFEU) –
pre-judicial stage
Pre-judicial/Administrative Stage
Violation/ Possible State

Informal Letter
Awareness Response
Letter of
Member State Reasoned
Formal
Responds Opinion
Notice

Infringement Proceedings (Articles 258-260 TFEU) –
judicial stage
Judicial Stage
Judgment and possibly Sanctions

ECJ
(Article 260)
Source:
http://europa.eu/r
apid/press-
release_CJE-14-
15_en.htm
Sanctions:
Lump Sum or/and Penalty Payment
Penalty Payment: Base 600euro x Seriousness (1-20) x Duration (1-3)
x Capacity to Pay (.36 – 25.40)

Annulment actions (Article 263 TFEU)
EU institutions or Member Individuals/legal entities

States (only against an act
(alleged violation of the addressed to them or of
Treaties, lack of competence, direct + individual concern)
etc.)
Annulment action
Judgment: Annulment, partial annulment or

rejection

2019-03 Prof DR Hartmut Aden HWR-FÖPS Berlin Course Presentation Pune Symbiosis Law School PDF

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2019-03 Prof DR Hartmut Aden HWR-FÖPS Berlin Course Presentation Pune Symbiosis Law School PDF

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Welcome!

European Law in Context

Symbiosis Law School

Prof. Dr. Hartmut Aden

What would you like to learn in my class?

Prof. Dr. Hartmut Aden

What do you already know about

 The European Union

 European Union Law

 The Council of Europe

Please brainstorm in groups with 2 or 3 students!

Prof. Dr. Hartmut Aden

Which institutions exist in Europe?

Prof. Dr. Hartmut Aden

The political systems

Prof. Dr. Hartmut Aden

What is governance??? What is EU governance???

Prof. Dr. Hartmut Aden

Political system (polity) with Way in which governments,

Prof. Dr. Hartmut Aden

International Organisations/other forms of global

Sub-national polities, e.g. regions, German Länder

Prof. Dr. Hartmut Aden

Path dependency: Critical junctures

Prof. Dr. Hartmut Aden

Dimensions for analyzing European Integration in a

Treaties Member States Institutional

Prof. Dr. Hartmut Aden

1951 (1952): Treaty of

1965 Merger Treaty: Common Council and Commission

1986 (1987) Single European Act

1991 (1993) Treaty of Maastricht (European Union)

1997 (1999) Treaty of Amsterdam

2001 (2003) Treaty of Nice

2007 (2009) Treaty of Lisbon

Prof. Dr. Hartmut Aden

1957 EEC 6: + BeNeLux, France, Germany, Italy

1973 EEC 9: + Denmark, Ireland, United Kingdom

1981 EEC 10 + Greece

1986 EEC 12 + Portugal, Spain

1995 EC/EU 15 + Austria, Finland, Sweden

2004 EC/EU 25 + Czech Republic, Cyprus, Estonia, Latvia,

2006 EC/EU 27 + Bulgaria, Romania … 2019? EU 27 + Post-

Prof. Dr. Hartmut Aden

JHA = Justice and

Prof. Dr. Hartmut Aden

1991 (1993) Maastricht-EU: 3 Pillars

2007 (2009) (new) European Union

Prof. Dr. Hartmut Aden

Official European Union Website with all current and

Prof. Dr. Hartmut Aden

Prof. Dr. Hartmut Aden

1866/1867 Northern German Alliance (Norddeutscher Bund)

1871 First German Reich (federal structure)

1933-1945 Abolition of federalism by the fascist regime

1949 Federal Republic of Germany and German Democratic

Prof. Dr. Hartmut Aden

East German West German

Prof. Dr. Hartmut Aden

Two institutions involved

Bundestag (members directly

Prof. Dr. Hartmut Aden

[69 votes in total; * Bremen, Hamburg, Saarland