Category: News/notes

EU Travel: The EU’s Package Travel Directive and COVID-19

by Robert Babirad *

 

 

I          Introduction

The unexpected cancellation of a long awaited, pre-paid vacation is nothing to joke about.  Naturally, if this happens and particularly during these turbulent times, the next question is how does one obtain a refund?  Secondly, under what conditions is this even possible and especially given the current global pandemic?  In November 2015, Directive 2015/2302/EU on Package Travel and Linked Travel was enacted. In light of the recent Coronavirus pandemic, guidance was again recently issued on current interpretations of this Directive and particularly with regard to how it will impact today’s travelers within the European Union.

 

II         The Package Travel Directive

The Package Travel Directive aims to enhance the European Union’s internal and single market performance. This is expected to occur through attaining, to the highest degree possible, a “uniform” and “high” degree of protection for EU consumers with regard to those contracts executed between both merchants and travelers and “relating to package travel and linked travel arrangements. The Directive aids in the “approximating” of the various laws pertaining to packaged travel across the EU’s Member States, as well as to particular aspects of their respective regulations, laws and those provisions that govern the administration of this area.

Harmonisation in consumer protection through legal approximation across the EU is the overarching objective of this Directive.

 

III       Cancellations and Refunds

Throughout the European Union, the governments of the Member States have been and continue to be, enacting measures, which have the intended objective of reducing the continued proliferation of the COVID-19 virus. One example is the introduction of the tier system in the UK.  A system of three tiers has been implemented in order to limit an increase in the infection rate. These three tiers range from Tier One at “Medium Alert” to Tier 3, which is classified as a “Very High Alert” area. These labels are based upon where the infection rate is the greatest and contain varying levels of restrictions. An example is that of not being permitted to “socialise in a group” outside publicly with more than six people with whom you regularly reside or whom are not included within your regular “support bubble. These actions have additionally extended beyond border controls and internal, national restrictions, to the overall limiting and restricting of travel both within the EU and from abroad. Travel is regulated on a Member State basis throughout the EU. As a result, the measures that have been enacted in the fight against COVID vary widely based on the country that is implementing them.   In other words, each country within the EU is implementing their own restrictions on where and with how many people you may socialize, testing requirements for the virus, where a mask is required and what an individual has to do if they want to travel to another location within the same country or abroad. At the EU level, it is the Directive on Package Travel and Linked Travel Arrangements that provides overall guidance to those impacted by unexpected cancellations of pre-booked packaged holidays.  This Directive acts as a unified means of providing consumer protection despite the new restrictions and limitations being introduced by the Member States individually at the present time.

Article 12(2) of the Package Travel Directive states that prior to the start or execution of a purchased travel package, the traveler may terminate the contract and receive a full refund, as well as not be responsible for incurring any termination fees, if certain conditions are met. These conditions are namely “unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity,” and which are “significantly affecting the performance of the package,” or those which “significantly affect the carriage of passengers to the destination. The concept of that which “significantly” impacts the “performance of the package” is somewhat ambiguous and seemingly open to varying interpretations.  The definition of significance remains unclear.

However, trips may be cancelled without any penalty to the organiser, where that entity is unable to execute the contract between the person booking the trip and the entity offering the package, and where these “unavoidable” and “extraordinary circumstances” exist. Similar protections exist on the consumer side as well.

 

IV        Undue Delay

It is of interest to note that the Directive also requires that travelers who booked the package be notified promptly and without “undue delay” and prior to “the start of the package” if the organiser cancels the trip. The Directive does not clarify the interpretation of “undue delay” in the notification to the consumer.  Therefore, the scenario is possible where the seller of the travel package already has knowledge of restrictions or limitations that have been or are about to be imposed by a national government, because of the Corona Virus.  Perhaps, in not wanting to lose their profits, the merchant holds off on informing the consumer, with the hope that the restrictions will soon be lifted or invalidated and the package will not need to be cancelled.  How long would constitute “undue delay” in informing the consumer in a scenario such as this?  Unfortunately, the Directive fails to provide meaningful guidance to the consumer in this regard.

 

V         Unavoidable and Extraordinary Circumstances

Article 12(2) of the Package Travel Directive permits travelers to be free of any penalty when cancelling a package trip as well, where the condition of “unavoidable and extraordinary circumstances” is present “at the place of destination or its immediate vicinity. The guidance which has recently been provided in light of the Coronavirus pandemic suggests that these circumstances entail a situation in which the traveler faces that which is beyond their control, and the results of those same circumstances were unable to be prevented by the consumer. This is in spite of taking of all “reasonable measures. The question is then raised as to what “reasonable measures” does the traveler need to take in order to be free of cancellation penalties for their package trip where there are “unavoidable and extraordinary circumstances” present?  It seems obvious that in most cases, there would be nothing that the traveler would be able to do, where, for example, the virus is present in a Member State and travel is otherwise blocked.  However, what situation would require “reasonable measures” to be taken by the consumer and what would those entail for purposes of meeting the criteria under this aspect of the Directive?

 

The information provided is helpful in that it states that COVID-19, another disease, or some other substantial health risk at the intended place of travel in the booking, would satisfy the criteria of constituting situations which are “extraordinary” and “unavoidable. On this, the Directive and the guidance recently provided is clear.  In other words, if the virus is present and travel is being blocked by national authorities upon your arrival in another EU nation, there is nothing more that you can do as a traveler.  This would be a situation considered “extraordinary” and “unavoidable” and there are no further “reasonable measures” in this regard that need to be taken by you.

Additionally, a traveler can employ the use of a national warning related to their travel, as a possibly effective strategy for demonstrating that there has been a circumstance, which is “extraordinary” and “unavoidable” and would justify them or the seller of the package in cancelling the contract, because of the impact on the actual trip’s execution. In other words, a national travel warning could be enough to constitute the “extraordinary” and “unavoidable” criteria necessary for fulfilment of the Directive and obtaining a full refund.

The guidance provided does also state that if the package travel contract cannot be executed, because of the authorities in a Member State prohibiting a certain type of movement or travel, this indeed would meet the criteria of circumstances, which are otherwise considered “extraordinary” and “unavoidable. Limitations enacted by an official authoritative body in a Member State relating to your trip, such as an attraction being closed, are also in all likelihood, qualifying measures that enable a package travel purchase to be effectively cancelled by the operator or the traveler.

 

VI        Significantly Affecting the Package’s Performance

However, there is room for discretion and ambiguity in determining whether the circumstances actually constitute having an impact on the execution of the travel package and to the degree that a court would consider these to be “significant” enough for purposes of the Directive. There is a definite lack of clarity in this regard, and the Directive has in all likelihood been left purposefully vague and ambiguous here in order to allow each national court to make an assessment and interpretation that is specific to the circumstances.  However, although seemingly done intentionally, this wording still leaves a certain degree of confusion on the traveler’s behalf.

Interestingly enough, fear is also not enough for a refund.  If a traveler feels a sense of fear toward going to a destination in their package travel arrangement, this will not be adequate enough for a traveler to cancel their package and receive a full refund.[i]  Instead, there must be a determination based on reasonableness in the context of potential life and health risks with regard to the decision as to whether travel to the place(s) in the contract would merit cancellation and entitle the traveler to a refund. If this situation is found to exist, the traveler or the purveyor of the package retains the right to cancel.

After the contract is cancelled, there will also be a period of fourteen days in which the traveler may receive a refund for their package travel purchase.

Vouchers for taking the trip at a later date may also be issued to travelers in lieu of a refund.  However, there is also a lack of clarity here with regard to the possibility of a refund for a voucher that is not used or cannot be used within the time allotted.  In all likelihood, the voucher itself would be issued under a separate contract with its own terms, conditions and refund policy and therefore not pose a problem under the Directive.  This does not appear to be a cause of concern to the prospective traveler, but there is little guidance regarding vouchers otherwise given in this regard.

It is advised though that travelers should be open to accepting that their packaged tours are postponed until sometime in the future, because of the “strains on liquidity of tour operators,” which has resulted in them being burdened with claims for reimbursement and “missing new bookings. Travelers are encouraged to consider the possibility of accepting these vouchers or “credit note(s),” as long as the possibility remains of a full refund if the voucher is not ultimately used. The universal “uncertainty” surrounding travel arrangements is acknowledged and vouchers are offered as a potential option with the final possibility of a refund if needed by the traveler.

 

VII      Traveler Assistance

The operator of a booked tour is required to provide travelers with assistance if they encounter blocks while on their trip and outside of their own respective Member State. This is particularly relevant given the rapidity of the changing situation regarding restrictions, quarantine and other limitations being imposed on a day to day basis under the current global pandemic.  Health service information, as well as information regarding consular and help from regional authorities must be provided by the operator of the tour, to a traveler encountering challenges on their trip.

If a traveler is unable to return from their packaged tour, because of circumstances which are “unavoidable” and “extraordinary,” the operator of the tour has additional responsibilities. They must pay for the stranded traveler’s accommodation for up to three nights where the traveler’s transport back home was included in the pre-purchased travel package’s cost.

If the authorities in a locale that one travels to require the traveler to go under quarantine, and as a result, that individual does not make their flight back home, there are options. The national rules of the respective Member State in question, with regard to the quarantine, may enable the traveler to make a claim for repatriation and greater accommodation costs.

 

VIII    Conclusion

 The recent guidance is helpful regarding when a traveler with a pre-booked package trip may seek a full refund under EU law.  This is especially useful in light of the current global pandemic.  However, there are still vagaries that remain leaving a degree of uncertainty as to whether a consumer is eligible for a full refund of their trip from a vendor with regard to EU law.  This is particularly true with regard to “unavoidable and extraordinary circumstances” under the Directive, as well as with regard to the consumer’s responsibility to take preventative measures, which are considered reasonable.  Additionally, a travel package’s performance being “significantly” impacted remains open to varying interpretations.  Finally, the “undue delay” responsibility on the part of the vendor of the package emerges as clear and uncertain with regard to consumer protection and their respective rights under the Directive.  In summary, there are positive aspects of the Package Travel Directive and its unified approach across the Member States, particularly with regard to the current Coronavirus pandemic.  However, there are aspects under the Directive that even with the current guidance, which has been provided, remain uncertain and vague for consumes of travel packages within the European Union.

 

*  Robert Babirad holds a Masters in European Union Law from King’s College London and is the author of an upcoming, non-fiction travel memoir titled: In-Transit Passenger: Making the Journey Matter coming out in the Spring of 2021.

Mental healthcare and prevention of suicide should be the first priority of EU Member States after the (first wave?!) 2020 Coronavirus pandemic

Dr. Andraž Teršek, Professor of Constitutional Law

 

  1. Introduction

 

The central purpose of this essay is to, once again, raise the general importance of mental health and suicide. Or, by other words, to once again address the importance of the awareness of general public in EU member States regarding mental health and the problem of suicide. And to at least partially cut off the edges of the stigmatization that is more than obviously still stuck to any attempt at serious and all-inclusive public debate on these issues. At least in my experience.

 

These two questions, or rather “problems” of the today’s society must be understood as the core of public health systems. On national, international and global scale. Especially, this should be particularly emphasized, after the Coronavirus pandemic in the first part of the year. But also because, or especially because the worldwide medical community express most serious concerns and alerts the public it was only the “first wave” of the pandemic which we have just witnessed.

 

One of the most obvious and most harmful consequences of the pandemic was and still is fear, public fear. In combination with loneliness and anxiety, it is fear that further contributes to people’s depression and depressive disorders. Which still too often lead to suicide attempts or even and most tragic – to suicides. Therefore, it was expected when psychiatrists and psychotherapists addressed the public with the information that the mental health problem increased and intensified during the pandemic. Especially in those EU member States where strict quarantine was commanded by the government decrees. Slovenia being one of those States.

 

As a constitutional scholar I have been trying to modestly contribute to such awareness in my homeland, Slovenia, one of the smallest EU member States. I am not satisfied with the effect of my effort. Especially since these two topics are almost neglected in the domestic legal community. This essay represents my determination to continue in trying to positively contribute to the motivation of fellow lawyers to work in greater numbers, more extensively and with lasting determination to increase the quality of the public health system, while at the same time improving the quality and effectiveness of joint mental health care and suicide prevention (not only in Slovenia but) in EU member States. It is not only a question regarding fundamental human rights to health, healthy environment and human dignity. It IS a question about life and death, living and dying.

 

But there is also another, personal reason for this essay…

 

2. In Memory of prof. dr. Andrej Marušič

 

Prof. dr. Andrej Marušič (1965-2008) was my friend. He was a psychiatrist and psychologist, whose work represents an important contribution to the progress in the field of public mental health in Slovenia and worldwide. He has studied Medicine and Psychology in Ljubljana, pursued his postgraduate education mainly in England, where he acquired Doctoral Degree in Psychiatry. As an assistant professor he lectured at the Maudsley Hospital in London and he was the National Coordinator for Mental Health at the World Health Organization (WHO). His particular investigative interest was Suicidiology. He took over a leading function in one of the sections of the International Association for Suicide Prevention (IASP). In 2002 he became the director of the Institute of Public Health of the Republic of Slovenia. He was especially devoted to investigative and clinical work aimed at improving the mental health of an individual and society as a whole. He became the Head of the Health Research Department at the University of Primorska, where he successfully coordinated and completed several national and European research projects focusing on various psychiatric and public health topics. He founded and led his own Health Trust named ‘Healing‘. His rich bibliography includes numerous internationally indexed primary articles from the field of Psychiatry and related disciplines. He was honoured with two international prizes for his research achievements. He was one of the most influential activists for the destigmatization of mental disorders in Slovenia.

 

Andrej’s intelligence, particularly the emotional one, his love and determination for humanity and his intuition enabled him to understand legal concepts and the logic of legal reasoning better than most of the lawyers or even legal experts I have ever met. Personally and professionally it was a privilege to be a part of his intellectual and scientific attention.

 

Professor Marušič invited me to join his team and to use the constitutional law, legal philosophy and legal theory as a tool for policy making and policy developing regarding public health, mental health and the problem of suicide. We were planning a research and postdoctoral study programme Law and Suicidiology. Soon after he got cancer and after several months of struggle and pain the unforgiving illness overcame his strength and his will to live.

 

This essay is a small contribution to Andrej’s professional legacy and a small reflection of my commitment to staying focused on the topic discussed here.

 

3. The Seriousness of Mental Health problem in Europe

 

Mental health is considered to be one of the biggest and most serious health problems in Europe, especially (according to the statistical data) for the last decade.[1] (Note: it is a serious problem in Slovenia also, putting my homeland near the top and in some recent years even on the top of the list of EU member States with the highest rate of suicides per capita). Slovenian and European public still awaits the information how many cases of suicide and suicide attempts were there during the Coronavirus pandemic. But it is already clear: the problem of mental health increased and the assumption it will increase even more seems to be a matter of logic.

 

During the pandemic living conditions were hard to bear and damaging for people with depression, depressive disorders or other mental health problems. Especially since constitutional rights to freedom of movement and socializing were limited (In Slovenia by government decree, prohibiting movement across the municipal borders without special and officially confirmed reasons.) Socializing was limited, in most of the EU member States quite strictly. (In Slovenia even sitting on benches in parks, streets and even in the natural parks and even on the edge of the woods was prohibited.) Even though “the state of emergency” was not officially declared in all of the EU member States (the Slovenian Constitution explicitly determines, by Art. 92, the conditions for such declaration and those conditions were not fulfilled), the exceptional circumstances of public life had an effect as if it has been declared. (Slovenian citizens were living in de facto quarantine.)[2]

 

4. The problem of Fear

 

It soon became obvious people all over the Europe are quite frightened. And they seem to be even more frightened as days went by.[3] For most of the time politicians were the ones addressing the public. They took up most of the space and time in the media. According to the daily TV media programs in some EU member States a little more, in others a little less. Doctors, other medical staff or medical scientists were, such was the impression, in the second or third plan. Not only the politicians, even the WHO was using words, such as “combating the Coronavirus.”[4] As if it was the time of war.

 

In most of the EU member States and most of the time (once again, such was the impression due to the daily TV media programmes and government PR-conferences) the public was addressed with pure statistical data: how many people have been tested for CIVID-19, how many of those were positive and how many people daily died –presumably just from virus. Broader context was rarely offered to the public: information about the age of those who were infected, their other diseases, possible terminal illness… By doing so people, especially the elderly, were even more frightened.

 

This fear won’t go away with the officially proclaimed end of the Coronavirus pandemic. (Such proclamation came first in Slovenia, Austria and Hungary came second. It has been suggested other EU member States will do it in the second part of June, combined with the opening of the national borders inside the EU.) And this fear won’t go away easily. It is a legitimate concern it will become a new epidemic. In EU member States who already declared the end of pandemic some citizens are still wearing masks when waking down the streets, driving cars, even exercising in nature (same goes for Slovenia). Even though the pandemic officially ended, even though the WHO did not advise that masks should be worn from the start of the pandemic, and even though medical experts and other professionals strongly oppose wearing masks (but the latter did not respond until after the official end of the pandemic). There are no reasonable indicators it won’t be the same or even worse in other member States where pandemic will officially end much later. People are scared and will remain to be scared.

 

5. The Right to be Protected from Fear

 

Every single individual, every member of the society, every human has the right to be protected from fear – by the State. I claim it is a fundamental human right.[5] Also in its connection to the right for the protection of health, clear environment, natural heritage and human dignity. To be protected from fear, to be protected from mental health damages and to be protected from social reasons for committing suicide are issues which come hand in hand with the positive obligations of the State regarding fundamental human rights, listed in the ECHR, and fundamental constitutional rights and liberties, listed in national Constitutions (also determined by the Slovenian Constitution). This right should be again and again explicitly recognized, addressed and emphasized as a fundamental human right inside the scope of the EU legal order. Not in spite of, but precisely because of the experience of the 2020 Coronavirus pandemic.

 

6. The Short-Term Priorities of the EU

 

Slovenia, as an example of the EU member State, has a National Resolution for facing the mental health problems.[6] But in recent years the forecasts and commitments written in that document basically remained a status of “pure words written on paper,” with no effective and determined, not to say responsible execution in social practice. Even a special Act on Mental Health was enacted, in late 2008, publicly introduced as an appropriate legal framework covering the problems of mental health of individuals and of the Nation. Bit this statute is nothing special. Most of the provisions concern general principles already known and written elsewhere, with addition of the provisions transcribed from the Constitutional Court judgement (No. U-I-60/03) determining fundamental right of individuals who are posted, by doctors or by court decisions, to Psychiatric Hospital for treatment. The documents review of the European Commission regarding mental health of the of citizens of the EU member States shows quite similar picture.[7]

 

In the EU member states the systemic arrangement of the mental health problem remains insufficiently effective. The deficit of professional staff, funds and special capacities remains obvious. Inside the frame of public health system and institutions, which I strongly consider to be a legal and political priority in the near future, this problem must not be ignored or put aside as secondary or even less important.

 

7. Legal Foundations for Further Deliberations

 

In the next months and years special concern should be given to the analysis, interpretation and synthesis of some of the essentially legal and constitutional (not only medical, ethical, philosophical and sociological) questions and problems, directly connected with mental health and the problem of suicide. Mental health and suicide should be fully and publicly addressed as legally relevant phenomena. A constitutional principle of “social state” must be politically and legally strengthened, not weakened. Socially responsible political community (as the EU was supposed to be) may not disregard the issue. Substance and scope of fundamental rights and freedoms closely connected with mental health and the suicide represent special, the most intimate relationship between the State and individual, so the positive nature of fundamental human and constitutional rights must be safeguarded with more effort of the State and its institutions, not with less effort. In this regard the EU Administration must play its part: as a legislator and as a supervisor over the implementation of political commitments and legal duties of the EU member States regarding the public health system, the protection of mental health and the prevention of suicides.

 

8. Work to be done

 

Legal aspects of mental health and the suicide problem represent a subject with quite a deficit in respect of scientific research and evaluation. The analysis of the EU institutions and committees regarding mental health confirm such evaluation. This presents us with necessity to make determined and sufficient steps forward. The model of modern constitutional democracy and the constitutional doctrine of positive obligations of the State enable and demand new approach to legal aspects of mental health and suicide. Some new and legitimate expectations towards legal policy and constitutional obligations of the State have to be made. A comprehensive legal and constitutional analysis should fulfil the gap in national and international prospect. All the relevant potentials of legal theory and legal practice should be determined and used for the purpose of reducing the number of cases of suicide and mental illness present in current social life. Success of this research could enable EU as the “political and legal community” to be progressive in evolving public programmes of mental care, psychotherapy, nursing, preventing suicides and palliative care.

 

The legal community in the EU member States should be deeply involved in forcing the States to do much more in this context as it has been done in previous years. The EU should use common legal order and policy making process to put the EU member States and the daily politics of the member States under an effective control of responding to their legal duties and exercising their ethical, legal and political responsibility regarding mental health and suicide. I consider this to be among the absolute legal and political priorities of the EU legal policies in the next two to five years. Lost time in this regard needs to be made up quickly, with increased awareness, responsibility and efficiency. So I call upon the EU member States legal community for its special and increased attention and effort to face this problem.

 

The author

Dr. Andraž Teršek,

Professor of Constitutional Law,

Faculty of Education, University of Primorska and European Faculty of Law, New University

 

 

References

[1] See, for example: The European Mental Health Action Plan 2013-2020. WHO. Regional office for Europe. Copenhagen, Denmark, 2015: Available at: https://www.euro.who.int/__data/assets/pdf_file/0020/280604/WHO-Europe-Mental-Health-Acion-Plan-2013-2020.pdf  (10. 6. 2020); The State of Mental Health in the European Union. Health & Consumer Protection. Directorate – General. European Commission.  2004-2012. Available at: https://ec.europa.eu/health/ph_projects/2001/monitoring/fp_monitoring_2001_frep_06_en.pdf  (15. 4. 2020)

[2] Living conditions were the most strict in Belgium, France, Germany, Hungary, Italy, Poland and Spain. See: States of emergency in response to the coronavirus crisis: Situation in certain Member States. Available at: https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2020)649408 (1. 6. 2020)

[3] In Slovenia another problem became obvious: hostile disposition towards each other was on the rise. Too many people behaved as they were the police, the surveillance agents towards each other, taking photographs and video recordings of their neighbours and strangers, presumably breaking the government decree not to stand too close to each other when having a conversation, not to socialize in groups of more than five people, not to cross the municipal borders on foot, on bikes and with cars, not to sit down on benches in parks, not to throw balls in basketball playgrounds etc. Too many of them were sending such material to the police. Slovenia almost became a Police State: not because of the police (who did a good job during the pandemic), but because of the “puritanical” character of too many individuals.

[4] See: WHO Campaigns/Connecting the world to combat coronavirus.

Available at: https://www.who.int/campaigns/connecting-the-world-to-combat-coronavirus

[5] Let me just remind ourselves of the Universal Declaration of Human Rights, the Atlantic Charter and the Philadelphia Declaration, which marked the end of the II. world war and announced a new world social order. And in particular of the European Social Charter. All these international legal documents address this right – as a fundamental human right.

[6] Resolution on the National Mental Health Program 2018−2028. Available at: http://www.pisrs.si/Pis.web/pregledPredpisa?id=RESO120&d-49681-o=2&d-49681-p=1&d-49681-s=2  (5. 6. 2020)

[7] See footnote No. 1.

 

 

Location privacy and data retention in times of pandemic and the importance of harmonisation at European level

Patrícia Corrêa

In this time of pandemic, many countries are starting to actively monitor cellphone data to try to contain the spread of the new coronavirus. Governments are using location data to trace contacts or monitor and enforce quarantine of persons who have tested positive for COVID-19 or those with whom they have come into contact with.

The United States’ Government is in discussions with the tech industry about how to use Americans’ cellphone location data to track the spread of the novel coronavirus. In Iceland, authorities have launched an app that tracks users’ movements in order to help tracking coronavirus cases by collecting data about other phones in the area. In India, state authorities have also launched an application to track the movement history of persons tested positive, also providing the date and time of the visit to spots by the patients. In Brazil, at least one city is already using cellphone data to monitor gathering of people and take action to disperse them and soon federal government will follow. There are reports of similar approaches in many other countries as well.

At European level, Internal Market Commissioner Thierry Breton has held a videoconference with CEOs of European telecommunication companies and GSMA to discuss the sharing of anonymised metadata for modelling and predicting the propagation of the virus.

Does this approach necessarily put data privacy at risk? Is the trade-off between data privacy and public health necessary? Whereas it is true that in exceptional circumstances fundamental rights need to be balanced against each other, data privacy shall not be an insurmountable obstacle to the implementation of exceptional public health policies.

Some basics on data and metadata

Simply put, data consists of potential information that has to be processed to be useful. [1] Metadata, on the other hand, is “data about data”, comprising all the information about data at any given time, at any level of aggregation. It is structured information about an information resource of any media type or format. [2]

In order to safeguard privacy, personal data must be anonymised before its processing. Anonymisation refers to the process of de-identifying sensitive data while preserving its format and type [3] so it cannot be tied to specific individuals. Privacy can be also be assured by means of aggregation, which refers to the “process where raw data is gathered and expressed in a summary form for statistical analysis.”

Conditions for the use of location data

While in some countries the use of information to combat the COVID-19 outbreak seems to go beyond anonymised data (individual location and contacts tracking, for instance, requires device-level data), in Europe, so far, collaboration between telecommunication companies and governments appears to encompass only the exchange of anonymised data or databased models. On that level of data processing, the European Data Protection Board issued an approval statement based on some conditions, such as the anonymity of the processed data and the applicability of administrative controls, including security, limited access and limited retention periods.

On April 8, the European Commission issued a Recommendation on a Common Union Toolbox for the Use of Technology and Data to Combat and Exit from the COVID-19 Crisis, in particular concerning mobile applications and the use of anonymised mobility data. The Recommendation acknowledges the value of digital technologies and data in combating the COVID-19 crisis stating, however, that fragmented and uncoordinated approaches could hamper the effectiveness of measures aimed at combating the pandemic and violate fundamental rights and freedoms. It sets up a process for developing a common approach (Toolbox) to use digital means to address the crisis. The Toolbox will consist of practical measures for making effective use of technologies and data, with a focus on a pan-European approach for the use of mobile applications, coordinated at Union level and a common scheme for using anonymised and aggregated data on mobility of populations.

Regarding the use of mobility data, the Recommendation provides, inter alia, for safeguards to be put in place to prevent de-anonymisation and avoid reidentifications of individuals, including guarantees of adequate levels of data and IT security, and assessment of reidentification risks when correlating the anonymised data with other data.

The right to location privacy

According to the Article 4(1) of the GDPR, personal data comprises any information relating to an identified or identifiable natural person, including location data. Location data, as stated by the ePrivacy Directive, means any data processed in an electronic communications network or by an electronic communications service, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service. It can be tied to a known individual (e.g. a name linked to a cell phone subscription) or to an identifier associated with a specific device (anonymised data). In other cases, a dataset is modified to display the location of groups of people, instead of individuals (aggregated data).

Location privacy, hence, relates to the location information of an individual in a sense that prevents others to learn about one’s current or past location. [4] In other words, “This definition captures the idea that the person whose location is being measured should control who can know it.”

The right to location privacy encompasses two fundamental rights, both guaranteed by the Charter of Fundamental Rights of the EU: the respect for private and family life (Article 7) and the protection of personal data (Article 8). Notwithstanding its importance, fundamental rights are not absolute and can be restricted in exceptional situations. As stated by Article 52(1), restrictions on these rights can only be imposed when lawful, legitimate and proportionate.

Location privacy is also protected under the Article 8 of the European Convention on Human Rights and cannot be limited either, if not for derogation in time of emergency consisting of war or other public emergency threatening the life of the nation. In that case, the measures shall be taken strictly to the extent required by the situation and cannot be inconsistent with other obligations under international law (Article 15).

Data retention in EU context

In Digital Rights Ireland case, the ECJ declared the invalidity of the Directive 2006/24/EC, which required providers of publicly available electronic communication services or public communication networks to retain telecommunication data of individuals for the purposes of preventing, investigating and prosecuting serious crime. The ECJ took the view that the Directive does not “provide for sufficient safeguards … to ensure effective protection of the data retained against the risk of abuse and against any unlawful access…” According to the ECJ, although the Directive satisfies a valid objective of general interest (public security), it does not meet the principle of proportionality.

To date, there is no EU legislation regarding data retention. Filling up the void, the ECJ decided in Tele2 Sverige case on the scope and effect of its previous judgment on Digital Rights Ireland, establishing minimum safeguards that must be included in any national law regarding data retention. ECJ therefore concluded that national legislation that did not contemplate minimum safeguards would be precluded pursuant to Article 15(1) of ePrivacy Directive.

Despite the guidelines set out in the Tele2 Sverige judgement, a survey by Privacy International indicates that, as of 2017, a large number of Member States still had not yet made necessary changes to ensure national legislation compliance. This is especially important in this time of pandemic, as many States in Europe are recurring to private telecom companies to disclose retained location data in order to fight the COVID-19 outbreak.

Data retention and location privacy: the need for harmonisation

This scenario highlights the importance of harmonisation on the subject at European level, what would contribute to safeguard citizens’ privacy rights. That coordination between private companies and governments shall reveal how access to sensitive telecommunication data by public authorities will affect the retention of data for private purposes.

In the light of the COVID-19 pandemic, location data can be very useful for epidemiological analysis, medical research and measures against disease spread. This importance, however, does not preclude the respect for privacy rights. In that context, a European framework for data retention is paramount to location privacy, since it can effectively regulate what data can be retained, for how long, and what measures must be taken in order to reduce violations risks and making it is being stored and shared in legitimate and responsible ways.

Final remarks

The retention, processing and exchange of location data to handle the pandemic do not necessarily have to violate privacy. There are mechanisms that, although not infallible, minimise risks of breach in the processing of personal data, in particular aggregation and anonymization. Besides, even in exceptional cases in which personal identifiable information processing is needed, EU Regulation and case law have already set some boundaries, especially amounting to proportionality. What really matters is the approach authorities will choose to take after the outbreak subsides, so mass surveillance does not become the norm.

[1] POMERANTZ, Jeffrey. Metadata. Cambridge : The MIT Press, 2015. p. 21.
[2] BACA, Murtha (ed). Introduction to Metadata. 3. ed. Los Angeles : Getty Research Institute, 2016. p. 2.
[3] RAGHUNATHAN, Balaji. The Complete Book of Data Anonymization: From Planning to Implementation. Boca Raton, FL, USA : CRC Press, 2013. p. 4.
[4] ATAEI, Mehrnaz; KRAY, Christian. Ephemerality is the New Black: A Novel Perspective on Location Data Management and Location Privacy in LBS. In GERTNER, Georg; HUANG, Haosheng (ed. ) Progress in Location-Based Services 2016. Switzerland : Spring, 2017. p. 360.

 

The Author

Patrícia Corrêa is a Portuguese qualified lawyer currently pursuing a Master’s Degree in International and European Law at Universidade Católica do Porto, Portugal.

A Burden to Share

Jasper Doomen

 

One of the European countries that have been particularly struck by the consequences of the spread of the Coronavirus disease 2019 is Italy. The health care problems have a direct effect on the economy, as a result of which it has appealed to other EU Member states, stressing the need for solidarity between them. How should the European Union respond to such an appeal?

 

Solidarity between the Member states is an important principle of EU law enshrined in art. 122 paragraph 1 TFEU. It is easy to adhere to such a lofty principle in times when those united under a single banner have no need to invoke it. The value of that banner is put to the test in times when their interests do not harmonize. In certain respects, the European Union, and in particular the Eurozone, is more aptly characterized as a union of dissent than as an organization whose members agree upon compliance with commonly agreed upon rules. May a country such as Italy rightly call on the European Union as a whole and thus, in fact, on those countries that have followed a more austere budgetary policy than it has?

 

Italy is faced with an immediate crisis, to which a swift response is fitting. This is arguably not the time to blame Italy for fiscal policy and political choices that have resulted in its present poor economic position, which was already heading toward its third recession in a decade prior to the outbreak of the virus; such time would not even exist. On the other hand, simply providing aid does not seem appealing, either, since such a policy results in rewarding Member states’ bad behavior. With respect to Italy, it may be pointed out, in this respect, that the ratio of its government debt to its gross domestic product has exceeded 130%.

 

Short-term assistance may be realized by referring to TFEU, art. 122, par. 2, which appears to provide a sufficient basis to aid Italy, since it indicates that financial assistance may be granted to a Member state that is “seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control”. Importantly, the article stipulates that the aid shall be granted “under certain conditions.” Similarly, art. 12, paragraph 1 of the Treaty establishing the European Stability Mechanism stipulates: “If indispensable to safeguard the financial stability of the euro area as a whole and of its Member States, the ESM may provide stability support to an ESM Member subject to strict conditionality, appropriate to the financial assistance instrument chosen. Such conditionality may range from a macro-economic adjustment programme to continuous respect of pre-established eligibility conditions.”

 

Greece was aided when it was confronted with the government-debt crisis of 2009. It was forced, in return, to privatize government assets and to reform its economy. It is clear that the situations differ in several respects. Most important, perhaps, is the given that in the case of Greece there was relatively much time to consider different options, since the size of the government debt was the main issue. In this case, by contrast, external circumstances, so to speak (the virus affecting all countries), are the main factor. That does not, however, derogate from the fact the first demand could be made here, too (although, admittedly, this does run the risk of a possibly undesirable external – such as Chinese – influence). In exchange, Italy could receive the means to address the health care issues. If this seems too harsh, one may consider making funds available unconditionally, provided they are indeed allocated to combat the immediate health problems. The need for economic reforms is a separate issue, to which I will return below.

 

One may, in addition, consider aiding Italy in the long term; the aid would then not have an incidental but a structural character, being intended to support the Italian economy. In this case, it would be wise to exercise restraint. The principal argument is based on the given that the Member states that have adhered to the demands that the ratio of the government deficit to gross domestic product not exceed 3% and that the ratio of government debt to gross domestic product not exceed 60% (art. 126, paragraph  2 TFEU, read in conjunction with art. 1 of Protocol no. 12 thereof) have reaped the benefits of their budgetary policy. Member states such as Finland and the Netherlands have almost consistently met these criteria. Their economy is thriving and they are able, accordingly, to issue bonds intended to solve their problems at low interest rates. Being cautious when structural aid for a Member state which has consistently not met them is concerned is not to be interpreted as a means to berate it, so as a sort of punishment. Rather, aiding it unreservedly conflicts with the basic idea that Member states are individually responsible to effectuate sound economic policy.

 

The European Central Bank has established a temporary Pandemic Emergency Purchase Programme in the amount of EUR 750 billion (Decision (EU) 2020/440 of the European Central Bank of 24 March 2020 art. 1), notwithstanding the previously defined limit of 33% under the public sector asset purchase programme (Decision (EU) 2015/774 of the European Central Bank of 4 March 2015 art. 5). It does not thus directly support Member states, but it is, on this basis, able to do so indirectly, by purchasing bonds, thereby ensuring that Member states will be able to continue to attract sufficient financial means at an interest rate that is mitigated as a result of this measure.

 

Italy will thus be able to increase its already substantial debt at low interest rates, reducing or even – in a pessimistic scenario – removing its incentive to carry through economic reforms, especially if it is able to operate on the assumption that the European Union will come to its aid if the debt becomes too great to bear. National political considerations may be an important factor as well.

 

One may think that the problems are exaggerated; as long as Italy simply promises to realize the reforms desired by the European Union (and certain Member states in particular, namely, those who have stressed the need to observe the budgetary norms mentioned above), the issue will resolve itself, albeit in the long term, its debt gradually decreasing to manageable proportions. An important observation must be made, though, even irrespective of the issue just addressed, namely, that the incentive to realize those reforms is diminished. The demand to keep the government deficit and debt in check is not something with which Italy must now, all of sudden, comply; it exists for all Member states. So reforming one’s economy as a means to realize those goals just means that one does what one is already obligated to do, so that it should not merit a special reward. Suppose an employee has been on the payroll for several months without performing any of his tasks. It would be peculiar if his employer were to promise him a bonus, on top of his wages, if he starts doing his job.

 

I have previously used, assessing the government-debt crisis of 2009, the simile of negotiating with someone who threatens to jump down a cliff while being chained to those with whom he is negotiating: his suicide brings their deaths with it, which gives him a strong negotiation position. This characterization appears to apply here, too, the more so since Italy has the third largest economy of the Member states.

 

It is positive if the European Union disburdens Italy as far as the immediate needs are concerned, irrespective of whether the other Member states consent to the measures on the basis of humanitarian considerations or self-interest. In the latter case, a very difficult calculation, given the variables, would have to be made in order to determine whether they are – in the long run – better off without a weak Member state, which may, incidentally, arguably be better off itself if a devaluation of the new currency (a new Lira) is possible, Italy presently being unable to do so, being bound by the same rules as Member states that are both able and willing to act in accordance with them. Whereas those Member states consider them sensible directives, Italy seems to deem them a straitjacket from which it must free itself. (For completeness, I remark that this summary presentation is not accurate, states themselves not having viewpoints, the actual viewpoints rather being a representation of the majority opinion.) Given the fact that isolated devaluation is not possible, the harm of the ‘remedy’ of monetary financing cannot be ignored, an increased inflation in the Eurozone in its wake being a serious danger.

 

I readily grant that it is easy for me, exercising armchair jurisprudence from a relatively comfortable position, to judge these matters. In any event, should it, for whatever reason, be decided that certain measures in addition to those focused on addressing the immediate health care problems are necessary, a piecemeal approach would be prudent. Such an approach was not taken by the former President of the European Central Bank in his policy of quantitative easing. Italy was, as a result, able to muddle through, not being forced to save for the winter, having to request others to contribute to the purchase of a decent coat now that it has arrived. The Pandemic Emergency Purchase Programme would not necessarily be problematic if Italy’s underlying condition were sound; it is not, and the risks of such policy for the other Member States are substantial.

 

It is difficult to say what the effects of rigorous measures to provide structural support will be, but the adverse result of the attempt to bring the Member states together may be that they end up further apart than ever before.

 

The Author

Jasper Doomen is an assistant professor of Constitutional law at the Open University. His publications are focused on topics in the fields of philosophy and law.

 

RECENT PUBLICATIONS IN THE FIELD OF EU LAW

 

The editors of the KSLR EU Law Blog are pleased to announce recent publications in the field of EU law with a special discount for our readers.

 

 

The Transformation of Economic Law

Essays in Honour of Hans-W. Micklitz

Edited by Lucila de Almeida, Marta Cantero Gamito, Mateja Durovic and Kai Peter Purnhagen

 

This book is written in honour of Hans-W. Micklitz for his jubilee 70th birthday and the closure of his twelve-year term as the Chair for Economic Law at the European University Institute (EUI). Hans-W. Micklitz has gained international recognition for dedicating his extensive and fruitful career to diverse areas of law: European Economic Law, European Private Law, National and European Consumer Law, Legal Theory, theories of Private Law and Social Justice. This book is a product of the collaborative endeavors of its contributors, who all have a special connection with Hans W. Micklitz as his doctoral supervisees or research assistants. The collection of twenty chapters is to be read as the influence of Hans’s dialogues in the early stage of the academic career of thirty-one young legal scholars. The volume is divided into three sections devoted to subjects that have received Hans’s attention while at the EUI: EU Consumer Law (part I); European Private Law and Access Justice (part II); the CJEU between the individual citizen and the Member States (part III).

 

Lucila de Almeida is Postdoctoral Researcher at the University of Helsinki, and Research Fellow at the Florence School of Regulation, Robert Schuman Centre for Advanced Studies, European University Institute.

Marta Cantero Gamito is Assistant Professor of Law at CUNEF (Colegio Universitario de Estudios Financieros, Madrid) and part-time Associate Professor in IT Law at the University of Tartu.

Mateja Durovic is Lecturer in Contract and Commercial Law at Dickson Poon School of Law of King’s College London.

Kai Peter Purnhagen is Associate Professor in Law at Wageningen University.

 

September 2019   |   9781509932580   |   432pp   |   Hardback   |    RSP: £95

Discount Price: £76

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Constitutional Law of the EU’s Common Foreign and Security Policy

Competence and Institutions in External Relations

Graham Butler

 

The Common Foreign and Security Policy (CFSP) of the European Union is a highly exceptional component of the EU legal order. This constitutionalised foreign policy regime, with legal, diplomatic, and political DNA woven throughout its fabric, is a distinct sub-system of law on the outermost sphere of European supranationalism. When contrasted against other Union policies, it is immediately clear that EU foreign policy has a special decision-making mechanism, making it highly exceptional.

 

In the now depillarised framework of the EU treaties, issues of institutional division arise from the legacy of the former pillar system. This is due to the reality that of prime concern in EU external relations is the question of ‘who decides?’ By engaging a number of legal themes that cut across foreign affairs exceptionalism, executive prerogatives, parliamentary accountability, judicial review, and the constitutionalisation of European integration, the book lays bare how EU foreign affairs have become highly legalised, leading to ever-greater coherence in how Europe exerts itself on the global stage.

 

In this first monograph dedicated exclusively to the law of the EU’s Common Foreign and Security Policy in modern times, the author argues that the legal framework for EU foreign affairs must adapt in a changing world so as to ensure the EU treaties can cater for a more assertive Europe in the wider world.

 

Graham Butler is Associate Professor of Law at Aarhus University, Denmark.

 

Oct 2019   |   9781509925940   |   376pp   |   Hardback   |    RSP: £80

Discount Price: £64

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Critical Reflections on Constitutional Democracy in the European Union

Edited by Sacha Garben, Inge Govaere and Paul Nemitz

 

This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners with legal and political perspectives to focus on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of law and respect for fundamental rights) in theory and practice, primarily at EU level but also with due regard to national and global developments. This approach underlines that rather than a single problématique to be analysed and resolved, we are presently facing a kaleidoscopic spectrum of related challenges that influence each other in elusive, multifaceted ways. Critical Reflections on Constitutional Democracy in the European Union offers a rich analysis of the issues as well as concrete policy recommendations, which will appeal to scholars and practitioners, students and interested citizens alike. It provides a meaningful contribution to the array of existing scholarship and debate by proposing original elements of analysis, challenging often-made assumptions, destabilising settled understandings and proposing fundamental reforms. Overall, the collection injects a set of fresh critical perspectives on this fundamental issue that is as contemporary as it is eternal.

 

Sacha Garben is Professor of EU Law at the College of Europe.

Inge Govaere is Professor of European Law, Jean Monnet Chair in EU Legal Studies at Ghent University and Director, Ghent European Law Institute (GELI) as well as Director of the European Legal Studies Department at the College of Europe.

Paul Nemitz is Principal Adviser at the European Commission, Directorate-General for Justice and Consumers. He teaches EU Law as a Visiting Professor at the College of Europe in Bruges.

 

Oct 2019   |   9781509933259   |   448pp   |   Hardback   |    RSP: £85

Discount Price: £68

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

A Practitioner’s Guide to European Patent Law

For National Practice and the Unified Patent Court

Paul England

 

Written by a team of lawyers with long-standing experience in patent litigation in Europe, this book is a comprehensive and practical guide to European patent law, highlighting the areas of consistency and difference between the most influential European patent law jurisdictions: the European Patent Office (EPO), England & Wales, France, Germany and the Netherlands.

 

It is frequently the case that the decisions and approaches of these courts are cited by European patent lawyers of all jurisdictions when submitting arguments in their own national courts. The book is therefore intended to provide a guide to patent lawyers acting in the national European courts today. The book also looks to the future, by addressing all the areas of patent law for which the proposed Unified Patent Court (UPC) will need to establish a common approach.

 

Uniquely, the book addresses European patent law by subject matter area, assessing the key national and EPO approaches together rather than in nation-by-nation chapters; and provides an outline in each chapter of the common ground between the national approaches, as a guide for the possible application of European patent law in the UPC.

 

Paul England is a solicitor at Taylor Wessing, London.

 

Oct 2019   |   9781509928606   |   552pp   |   Hardback   |    RSP: £110

Discount Price: £88

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

New Economic Constitutionalism in Europe

George Gerapetritis

 

New Economic Constitutionalism in Europe focuses on the institutional mutation of constitutionalism following the major economic crisis in the Eurozone and globally. The main axis is that a new economic constitutionalism has arisen which trespasses on the conventional conceptual foundations and needs to be addressed with novel institutional vehicles. The author proposes an original and searching analysis of the significant constitutional evolutions that have taken place in member states in response to the global financial crisis. The book combines a sophisticated theoretical model of a new form of economic constitutionalism with detailed practical argumentation. This important new work provides a valuable addition to the understanding of this hugely important topic.

 

George Gerapetritis is Professor of Constitutional Law at the National and Kapodistrian University of Athens.

 

Oct 2019   |   9781509909629   |   384pp   |   Hardback   |    RSP: £85

Discount Price: £68

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!