The European Court of Justice explains in its recent judgement: Privacy-Shield Agreement – ineffective! What does this mean in practice?

In its latest decision the European Court of Justice declares the Privacy-Shield-Agreement to be ineffective. Essentially, it justifies this on the basis of US security laws, which grant the authorities extensive access to data of EU citizens without significant restrictions and without judicial control being possible.

At the same time, the European Court of Justice also decided on the standard data protection clauses by which a data importer in a third country gives a contractual assurance to a European company that data transmitted to it will be processed in accordance with EU data protection standards.

In principle, these standards should continue to apply, as long as the laws of the destination country allow the data recipient to comply with these data protection clauses. Since companies in the USA are legally obliged to make their data available to state authorities on a large scale, the European data protection authorities are obliged to suspend or prohibit the transfer of data based on these data protection clauses in such countries.

This has a major practical impact on the international exchange of data!

Data transfers to the USA are now in breach of data protection laws if they are made exclusively on the basis of a Privacy Shield certification. This covers not only transfers to contract processors, i.e. Cloud Service Providers, but also those within a group or to business partners for whom at least part of the data processing is performed in the USA.

The use of software tools where at least part of the data processing takes place in the USA as well as the internal data flows to US Group companies have to be checked.

The European Court of Justice indicates that this is not an adequate level of protection in the USA due to the uncontrolled monitoring powers of the security authorities.

The only data that remains allowed is that which is necessary for the performance of a contract or for the implementation of pre-contractual measures with the person concerned. Communication with American customers or hotel bookings in the USA are still allowed.

Equally not directly affected is the use of US service providers if the service is provided entirely in European data centers. This is now the case with large hosting and cloud providers (e.g. Amazon Cloud) from the USA, for example, as they have server locations in Europe.

In practice, therefore, the only way forward for the time being is to use standard data protection clauses which ensure a certain degree of legal certainty. In addition, however, there is certainly still a great deal of uncertainty regarding the additional examination of the level of data protection in the country of the data recipient, which is still necessary.

It therefore remains to be seen how other data protection authorities in Germany and the EU position themselves on the question of the legally compliant use of standard contractual clauses for data transfers to the USA. A renewed attempt to establish a follow-up regulation to the Privacy Shield would be a conceivable option.

However, this agreement would have to include significant restrictions of the American security laws and an expansion of the legal protection options for EU citizens. This does not seem very promising. The USA will not change its security laws because of EU data protection concerns!

As a result, in practice, there is no choice but to await further action from the European Commission and recommendations from data protection authorities. Announcements to this effect have already been made by both the European Commission and the European Data Protection Committee (EDSA). So, unfortunately, as so often we have to wait and see…

Donald Trump versus Twitter? And why Mark Zuckerberg interferes.

Twitter had gone over to mark fake news and false claims in his published tweets. In doing so, Twitter wanted to make it clear that Twitter was questioning the truth of some content.

This was also done to the successful Twitterer Donald J. Trump who has more than 85.5 million followers. He directly saw this as a censorship of his expression of opinion and threatened to abolish the previous freedom from liability for illegal content on the platforms.

This action would have fatal consequences and would be a dramatic deterioration in the legal position of the Internet platforms. Because if they were actually liable for illegal content of their users themselves, a change in business models and the introduction of upload filters would lead to the fear of a significant censorship of the content.

The question if Trump is able to do this constitutionally by presidential decree is not to be discussed here.

I also found the published position of Mark Zuckerberg of Facebook on this issue extremely interesting. This becomes clear by the following statement of him: “I do not believe that Facebook and other platforms should be judges of truth!”

Jack Dorsey, CEO of Twitter, responded: “I don’t want to judge the truth, I want to enable people to form a free opinion based on facts!

And right in the middle of all this, Donald J. Trump, who strongly believes that everything he says is true and factual.

I suppose it is worth thinking about the terms: fact, opinion and truth.

In the constitutional law of Western democracies, freedom of expression and freedom of the press are traditionally established as very high legal values.

In press law, a fundamental difference is made between opinion and fact in the form that facts are in principle accessible to objective, scientific proof. In contrast, an expression of opinion is characterized precisely by the fact that it is not verifiable, but rather is the result of an individual, intellectual, subjective process that is not subject to verification.

Fortunately, this broad definition of freedom of expression is consistently represented and protected by the Federal Constitutional Court. An evaluation of opinion in terms of content is forbidden, quite in keeping with Voltaire, the pioneer of the French Revolution and civil freedom.

Freedom of expression in the public space is exactly the right to express and say what others do not want to hear!

Legally problematic now is the definition of the concept of truth. Here we leave the justiciable constitutional right range and enter the philosophically, religiously shaped world view range.

The truth is to be classified as best as:

a verifiable fact in its most convincing form.

But if we look at it this way, then it is a verifiable fact and no longer a truth.

This means that when we speak of truth, it always contains an element of subjective confidence. For subjective belief, whether ideological or religious, is a characteristic of the definition of opinion in the constitutional sense. Strangely enough, we are dealing with a concept of truth that contains elements of fact as well as elements of the concept of opinion with its subjectivity.

This reminds me in an impressive way of a quotation from Friedrich Nietzsche, who described truth as something other-as something always also bipolar. “Pain is always a pleasure, curse always a blessing, night also a sun and a wise man also a fool[…]” (Source: So said Zarathustra p. 402)

After these realizations it remains to be stated surprisingly that one must quite agree with Donald J. Trump, when he says that everything he said is true. Nevertheless, this is only his own, individual, highly personal truth.

But if he claims facts, he cannot refuse the necessity to prove them.

What importance does a decision of the German Federal Court of Justice have for me as a citizen of the Federal Republic of Germany?

Again, and again we read or hear: “The ECJ has decided” or “[…] the ECJ has today in its decision strengthened the rights of consumers in the EU” or something similar.

The questions that come to mind are in such a case:

  • What legal effect does the decision have for me as a citizen of the FRG or any other member state?
  • Must all courts in the Eu-states now base their decisions on this verdict?
  • What function and legal effects do ECJ rulings actually have?

For this purpose, let us first consider the original competences of the ECJ?

  1. The ECJ is responsible within the EU for all findings of EU treaty violations by Member States.
    This means that the ECJ makes legally binding decisions on whether a state has violated EU treaties. For instance, in the case of the ancillary copyright law for press publishers introduced by the Federal Republic of Germany into its Copyright Act legislation.
    For example: In this case, the FRG violated EU treaty law with the consequence that these rules of the German Copyright Act legislation are invalid! (If a matter is to be regulated by an EU directive – as here – then a member state cannot simply make its own national regulation!)

  2. The ECJ is also responsible for the questions whether a state has violated the human rights of an EU citizen as laid down in the EU Human Rights Convention by its actions. Here, too, a judgment of the ECJ immediately leads to the ineffectiveness of the member state’s actions or its applied regulations!
    For example: The FRG had to change its custody regulations after the father of an illegitimate child, who paid alimony and insisted on his right of contact filed his case at the ECJ. According to the legal situation at that time, the mother could prohibit him the right of contact in principle. The father had lost before all German courts, including the German Constitutional Court. Or the case of the law student from Vienna named Schremp , who saw his EU human rights affected by the practice at the time – based on the Safe Harbor Agreement – of exchanging personal data between the EU and the USA. In this case, the decision of the ECJ led to the immediate invalidity of the Safe Harbor Agreement and therefore to the immediate illegality of the entire exchange of data between the USA and Europe.

But what happens now in cases where national supreme courts, such as the Federal Supreme Courts, appeal to the ECJ?

This only happens in cases where the decision of the national court has to be based on the interpretation of a standard which has originated in an EU directive. Here there is a declared political will to ensure uniform legal practice in Europe in the interpretation of EU directives. How does this happen now? Well, if the ECJ has to decide a case involving a corresponding standard, it makes a so-called referral order to the ECJ with questions on the interpretation of the standard.

This court examines the questions presented in the light of expert opinions and answers them in the form of a decision.

This is now the decision of the ECJ, of which we read in the media!

This decision goes back to the national court, which now has two options:

  • It agrees with the opinion of the ECJ and decides its case on the basis of this interpretation.

Or

  • It does not agree with the interpretation and decides otherwise.

The result is that the ECJ is not legally binding in relation to the national courts, as the highest instance at the EU level.

The autonomy of the national courts is not affected, so that this also applies here: Only in the constellations mentioned in 1. and 2. does the ECJ have binding effects and powers in relation to the Member States and their citizens. In all other legal matters, the national autonomy and independence of the courts remains.

Is an EU – Directive, which the EU – Parliament has passed, actually binding for me as a citizen of the FRG?

In my seminars on copyright law I have come across this question again and again in the recent months. The occasion was the discussion about the new EU Copyright Directive, which was decided on in the summer of 2019 with a lot of excitement in public.

Keywords were upload – filter and direct liability of platform operators for copyright violations by their users.

The Main focus of the directive is the Europe-wide introduction of ancillary copyright for press publishers and the establishment of direct liability of the platform operators. Both are already applicable law in the FRG.

But what legal binding effect does an EU directive have?

It is important to know that an EU directive comes into being in the so-called TRILOG procedure at EU level, i.e. with the participation of the three institutions of the EU:

  1. The EU Council, i.e. the assembly of the heads of governments of the EU Member States. This also convenes at ministerial level. The EU Council is the political leadership of the EU and the principle of unanimity applies. This is also the reason why the EU cannot take any political decisions currently, because I almost no political question unanimity can be reached.
  2. The EU Parliament, which is larger than any national parliament and directly elected.
  3. The EU Commission as the administrative arm of the EU, which is basically responsible for ensuring uniform economic conditions in the EU and has been given extensive powers in this regard.

So how does the TRILOG procedure typically work?

The EU Council decides that in one area, e.g. data retention, it makes sense to install a uniform Europe-wide regulation. The Council then instructs the EU Commission to prepare a corresponding directive.

The EU Commission then develops the proposal for an EU directive with the participation and consultation of the associations and lobbyists concerned and then submits it to the EU Parliament for the first vote.

In the EU Parliament, this blueprint is then supplemented, amended and expanded and, after the conclusion of the parliamentary discussion, is put to the first vote.

This version is then submitted to the EU Council for final examination. The Council can make deletions and amendments and must then vote again.

The version modified in this way is then put back to the EU Parliament for the 2nd vote. The EU Parliament must then vote, without being able to change the content of the directive in any way.

If this vote is positive, then it is finally there the final EU directive!

What does that mean for us now?

According to the EU Agreements, this directive is now not directly applicable in the Member States as binding law, but merely triggers the obligation of the Member States to incorporate this directive into their respective national law.

This means that each state must now start its national legislative procedure and incorporate the directive into its national law, e.g. the Copyright Act. Unfortunately, there is no guarantee that this will actually be implemented! The EU can only impose penalties if a state does not implement the directive within a period of 3 – 5 years.

No EU head of state risks political problems “at home” just to implement an EU directive. It should not surprise us that especially the FRG does not implement all EU – directives into national law!

So, in the result you have to state that an EU – directive will never be directly legally binding for a citizen of a member state!

Job application costs, who actually has to bear them by law?

Disclaimer: All of the following Statements are based on the German Law.

Over and over again you can see in job advertisements or during the preparation for a job interview that the company advertising the job points out that they unfortunately cannot cover the costs for the job interview. This raises the question: How do I as an applicant deal with this situation? There is hardly any other legal question on which the German courts are as unanimous as on this question.

According to § 670 BGB the inviting company has to cover the costs!

Why?

Well, of course § 670 BGB does not say anything directly about the costs of introduction but § 670 BGB says:

If, for the purpose of executing an order for the principal, which is solely in the interest of the principal and the agent hasn´t been explicitly ordered to do so , the agent incurs expenses which he may consider necessary under the circumstances, the principal  is obliged to pay compensation.

This means that if someone does something for someone else, without a specific order, he must be refunded the expenses made. The only condition is that the transaction is carried out exclusively or at least predominantly in the interest of the other (the principal) and that the person carrying out the transaction has not acted only in his own interest.

Here is a typical example for §670 BGB: Your neighbour goes to the Caribbean for diving and is also not reachable by telephone. Then a pipe burst occurs in his apartment. As a responsible neighbour you take care and hire a plumber and you also have other expenses. As you are the contractual partner of the plumber, you also have to pay him. But don’t worry according to § 670 BGB you only have to wait until your neighbour is back from his holiday safely and then he has to give you a refund of all costs. Regardless of whether he wants to or not. These expenses are only in his interest and not in your own.

Now back to the topic. This is exactly how the courts assess the interests at a job interview. The courts are of the opinion that it is in the exclusive or at least predominant interest of the inviting company to improve its business processes with qualified employees and therefore ultimately increase its profit.
But Caution: If I am informed before the journey to the interview that the costs will not be covered and I go to the interview anyway as an applicant, then this is a legally valid waiver of my claim under § 670BGB.

PRACTICE TIP:

  1. the question of costs should never be asked by the applicant during the preparation for the interview, but simply lay out the costs and drive to the interview.
  2. only when the final refusal comes, these costs are then claimed.
  3. claims arising from § 670 BGB will only become statute-barred after 3 years. So, time enough!

Now my personal point of view: I can’t understand why companies with high staff turnover or filling simple mini-jobs are charging applicants with these costs for an interview. For companies these costs are a marginal expense. However, these costs are a heavy burden for the individual applicant who is in an economic emergency situation, as he may need a new job or want to develop further. He may have to go through several interviews and these costs always represent a much higher proportion of his available income than for the inviting company.