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Rule of Origin

Rule of origin Rule of origin means that each Member State must apply its national provisions to the providers of information society services established on its territory, at least insofar as this legislation falls within the ‘coordinated field’. (Art. 3 (1) e-commerce Directive). The (primary) responsibility of enforcement and oversight is assigned to the competent authorities of the country where the service originates from. Recital (22) states as rationale for this provision that ‘information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives’. But this does not imply that the information society service provider will only be subject to the national laws of the Member State where it is established. The rules of private international law and the rules on the jurisdiction of courts still apply. (37 Art. 1 (4) e-commerce Directive: “This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of courts”).

Consent in Data Protection Law

Consent in European Union Data Protection Law Introduction The European Union’s Framework Data Protection Directive defines “consent” to mean the “freely given specific and informed indication of [one’s] wishes.” The concept is a fundamental fixture of the European Union’s data protection regime featuring in data protection law in a variety of different ways, from “unambiguous” and “explicit” consent in the Framework Directive to opt-out and opt-in consent regulating electronic marketing in the ePrivacy Directive. These various forms of consent have been transposed into national laws many times. Lawfulness of processing The fundamental basis to EU data protection law is the principle of prohibition with permission provision. This general prohibition of all processing of personal data, if no specific legal ground for permission is met, is based on Article 7 Directive 95/46/EC: Member States shall provide that personal data may be processed only if […]. “Only if” translates into the prohibition of processing activities being the rule with the following list of permissions being the exception. The legal principle leads to data controllers having the responsibility to claim such an exception to the rule to justify their processing activities. Data subject’s consent The most prominent of the permissions is the data […]

Data Processor

Data Processor The data processor is the statutory counterpart of the data controller. According to Article 2 lit. e) EU Data Protection Directive 95/46/EC, the processor is “a natural or legal person, public authority, agency or any other body which processes data on behalf of the controller”. From this definition two main provisions for a data processor can be derived: The entity is organisationally and legally separate from the data controller (it needs to be at least a legally independent branch of a corporation) The entity is processing personal data on behalf of the controller The data processor undertakes data processing tasks that were delegated by the data controller. The crucial factor is the data controller’s remaining authority over the purpose and means of the processing. The data processor is bound by the instructions of the data controller. The Article 29 Data Protection Working Party listed additional criteria that can support the identification of an actor as data processor. (Article 29 Working Party, WP 169, Opinion 1/2010 on the concepts of “controller” and “processor”, adopted on 16 February 2010, p. 10 ff) These additional criteria are: Level of prior (contractual) instruction Monitoring through the controller entity The visibility or outward […]

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Smart Regulation

Better Regulation Policy The law should be more understandable, i.e., clearer and more easily accessible either for legal professionals or lay persons. At European level this principle is an integral part of the EU better regulation policy as of its early origins. The principle of making law more understandable has two distinct dimensions: drafting good legislation (better law-making), and improving practical access to legislation by various editorial and technical presentation means (like consolidation, time-versioning, linking, classifying, authoring, etc.) offered by the public online legal databases. Here, we will stress on the latter only. Consolidation is the most important precondition for making law understandable. There is no need to argue too long about its importance, if we consider for instance the case with the Bulgarian Labour Code, which has been amended 80 times after its promulgation in 1986. It is also obvious that not only a lay person, but an experienced lawyer will need a consolidated up-to-date version of the code, and if the concrete legal case is governed by provisions which are no longer in force, he or she will need in addition a consolidated historic version valid for the specific point in time. The importance of consolidation of EU legal acts […]

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Working Party on e-Law

EU Council Working Party on e-Law EU Council working party on E-Law developed in 2009-2010. It promotes the use of information and communication technology in the justice area. It deals with issues including electronic access to information about judicial practice and is involved in projects such as developing the common European e-Justice Portal, which will provide information about the legal systems and laws of Member States. European Legislation Identifier Proposed European Legislation Identifier (ELI) standard: European Legislation Identifier, EU Council Document no. 17554/11; John Dann’s December 2011 slide presentation about the European Legislation Identifier. The EU Council Document summarizes the European Legislation Identifier in the following way: We propose a European Legislation Identifier (ELI) scheme of URI Templates to encourage and promote the use of HTTP URIs for legislation in Europe’s Official Gazettes. ELI needs to be flexible enough to enable countries to design high quality URIs for their own legislation but also enable a coherent European wide approach. ELI is a set of components for creating URI Templates for legislation in Europe. These components can be used to make high quality URIs supported by a formal technical description. To aid adoption of ELI we propose a generic ELI URI […]

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Open Data

European Law Open Data Note: Most of the following information is sourced from several eucases.eu resources. The world of legal publishing is changing rapidly as a result of the Open Data movement. Most Member states are offering public access to portals with consolidated national legislation. Judgments which were previously available only to the case parties, their lawyers and occasionally the big legal information providers are now published freely on the courts’ internet sites. Some MSs (e.g., Bulgaria, France) have even introduced centralised interfaces for national case law. What was unimaginable until yesterday is today a fact – millions of court decisions are publicly available on the Web. Moreover, in line with the PSI Directive (Directive 2003/98/EC Council of 17/11/2003 on the re-use of public sector information, OJ L 345, 31.12.2003, p. 90-96), the data are re-usable free of charge or on acceptable prices. Legislation EU EUR-Lex http://eur-lex.europa.eu UK UK Legislation http://www.legislation.gov.uk DE Gesetze im Internet http://www.gesetze-im-internet.de FR LegiFrance http://www.legifrance.gouv.fr AT Bundesrecht konsolidiert http://ris.bka.gv.at IT Normattiva http://www.normattiva.it BG Darjaven vestnik http://dv.parliament.bg Legal Doctrine Articles n.a. Directory of Open Access Journals http://www.doaj.org Case Law BG Supreme Administrative Court http://www.sac.government.bg BG Supreme Judicial Court http://www.vss.justice.bg UK Judicial Office http://www.judiciary.gov.uk/media/judgments UK The Supreme Court […]

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National Judge

National Judge The accessibility of law, case law and doctrine at EU and national levels in all Member states is essential for international business and harmonization of EU law. A priority promoted, among others, by European Commission Communication, A More Coherent European Contract Law (COM(2003) 68 final). When deciding a case which involves applying EU law, a national judge is acting as a guarantor of the European legal order itself. In its Resolution of 9 July 2008 (European Parliament resolution of 9 July 2008 on the role of the national judge in the European judicial system (2007/2027(INI)) the European Parliament determines the national judges as “the keystone of the European Union judicial system” who play “a central and indispensable role in the establishment of a single European legal order”. His ruling becomes a decision not only on national laws but also on the application of EU legal provisions, and as such, (s)he needs access to the relevant case law of other Member states. Developments can be observed in EU jurisprudence (see Case 283/81, Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, [1982] ECR 3415 (CELEX: 61981J0283), called the “CILFIT Case”): the Court of Justice stresses that before deciding whether to refer a question to […]

Freedom of Services

Freedom of Services Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. (Art. 3 (2) e-commerce Directive). There are, however, a number of exceptions to this rule. Member States are allowed to impose restrictions on the provisioning of a given information society service where such restrictions are necessary for: o Public policy (e.g. prevention, investigation, detection and prosecution of criminal offences); o Protection of public health; o Public security, including the safeguarding of national security and defence; o The protection of consumers, including investors. In these cases measures may be taken, but only against a given information society service which prejudices these objectives or which presents a serious and grave risk to those objectives. Also the measures must be proportionate to the objectives. (Art. 3 (4) a e-commerce Directive). The freedom of services and the rule of origin imply that every Member State is responsible for the service providers established on its territory but has to allow service provider from other Member States to provide their services in its territory. On the other hand there are also exceptions from this rule which are listed in the […]

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Data Protection Directive

Data Protection Directive Data quality The Data Protection Directive 95/46/EC sets in Article 6 requirements for the quality of personal data which is to be processed. Apart from all processing activities being fair and lawful, the most important principle is purpose limitation. The processing of personal data must be predetermined for a specific purpose. Only the data necessary and adequate for this purpose may be legitimately collected and processed further. Any later or downstream processing of the data for a different purpose is prohibited as long as it is incompatible with the original purpose that initiated the collection of the data in the first place.For instance, see Article 6 (1) lit. b) for the general requirement of purpose-binding and Article 8 EU Data Protection Directive 95/46/EC for the processing of special categories of personal data with the authorization of the EU Member States to regulate specific purpose cases; also, see recitals (28), (30) and (31) of the Directive. So for such processing, new legitimizing grounds are necessary or elsewise the data has to be effectively deleted as soon as it is no longer necessary to fulfill the original purpose. Data subject’s rights To guarantee an effective protection, data protection law […]

Williams Betty Smyth

Williams Betty Smyth

Introduction to Williams Betty Smyth

Betty Smyth Williams, born in 1943, Northern Ireland peace activist, recipient of the 1976 Nobel Prize for Peace. Williams shared the prize with fellow Northern Ireland activist Mairead Corrigan for organizing demonstrations a…

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