BrexitGeopoliticsPersonal Data

European supranational legal orders

The mess of acronyms which denote various European organisations can be overwhelming. None more so that the legal orders and courts involved in European Data Protection. In this article we explain the origins and purposes of the two main courts CJEU and ECtHR.

The big European institutions

We discuss the two major European institutions: the European Union (“EU”) and the Council of Europe (“CoE”) in this article. The confusion between the two often arises because both the EU and the CoE have ministerial councils, permanent secretariats of officials, courts to determine disputes and assemblies of parliamentarians. As a not very helpful media shorthand the EU is sometimes referred to as Brussels and the CoE as Strasbourg. Not very helpful as once a month the EU parliament meets in Strasbourg, while the CJEU is based in Luxembourg not Brussels. Much more importantly their functions, organisations and legal foundations are very different, think “apples and architecture”.

The Council of Europe

An international agreement (‘the Statute of the Council of Europe’) was signed in London on 5 May 1949 in the immediate aftermath of the Second World War. The purpose was to bring together the states of Europe to promote the rule of law, democracy, human rights and social development. At the time Ireland and 9 other European States, created the Council of Europe (CoE) with a stated aim of achieving “a greater unity between its members for the purpose of safeguarding and realising the ideals and principles of their common heritage and facilitating economic and social progress in Europe” As of now (April 2019), the CoE comprises 47 High Contracting Parties, 28 of which are also EU Member States. European Data Protection

The EU

What is now the European Union developed in stages from the original European Coal and Steel Community established in 1951 with the principal intention of creating economic ties between France and West Germany in order to make future conflict less likely. The EU developed through agreements defined in a number of treaties relating to the member states within the EU and its method of operation. Today, the principal treaties are the Treaty on European Union (“TEU – Maastricht”) and the Treaty on the Functioning of the European Union (“TFEU”).
What began as a purely economic union has evolved into an organization spanning policy areas, from climate, environment and health to external relations and security, justice and migration. The name change, from the European Economic Community (EEC) to the European Union (EU), in 1993 reflected this expansion from purely an economic entity. As of now (April 2019), the European Union comprises 28 member states.

Parallel courts

Both European structures are built on the concept of a rules based order and so have created their own courts.

CoE Court

To ensure that the member states observe their obligations under the ECHR, the European Court of Human Rights (ECtHR) was set up in Strasbourg, France in 1959.

Applications against states parties for human rights violations can be brought before the ECtHR by other states, by other parties or by individuals. Previously, there was also a European Commission of Human Rights, elected by the Committee of Ministers, that acted as a filter mechanism for cases by deciding whether or not a petition to the Court was admissible: it was abolished when the ECtHR was restructured in 1998.

The ECtHR consists of a judge from each member state. When a vacancy occurs, the government of the state concerned nominates three candidates for the empty seat; but it is the Parliamentary Assembly that fills the vacancy by electing one of the three nominated candidates.

European Union court

The Court of Justice of the European Union (“CJEU”) was previously known as the European Court of Justice (“ECJ”). Its primary functions are to interpret EU law to ensure consistency across all EU countries and to settle disputes between member states and EU institutions – often as a result of “infraction proceedings” brought by the Commission against a member state. Individuals, companies or organisations can also bring cases before the Court if they believe that their rights have been infringed by an EU institution. In addition, a national court may interrupt a case and refer a point of EU law to the CJEU for an opinion.

Each member state nominates one judge to the CJEU. In addition, there are eight Advocates-General: the AG for a particular case presents an opinion to the Court as a kind of amicus curiae.

CJEU V ECtHR

The primary difference between the way the two courts operate is while EU law is binding on member states, it is more equivocal for the ECtHR. Where ECtHR judgements must be taken into account”. This rolls neatly into the question of how the two supranational courts interact with the national court systems. Again the approach to references from domestic jurisdictions is very different between the two courts. In the EU national courts may refer issues to the CJEU for a ruling but there is currently no procedure for any such reference by a domestic court of a CoE High Contracting Parties to refer to the ECtHR.

Interestingly the EU as an entity was going tio sign up to the CoE’s ECHR but this was derailed by the CJEU in Opinion 2/13 [2014] EUECJ Avis-2/13, which answered the question, “Is the draft EU agreement re: accession of the EU to the ECHR compatible with the Treaties?“, in the negative. To isolate one phrase from a 45 page judgement is fraught with issues. With that caveat in mind the words “affect the specific characteristics and the autonomy of EU law” jump out. Essentially like the German Federal Court the CJEU is a scrupulous guardian of its own autonomy.

Data Protection and Privacy law

Because of the two supranational institutions and matching legal orders in Europe today there are naturally two subtlety different laws governing data protection and data privacy in Europe.  This differences are introduced here.

If you have any questions about this or any data protection issues please contact us.