Case A-1/15, The Canada-EU ‘PNR’ Agreement – contrary to the EU Charter?

Comment
Three years ago, concerns about privacy and the enforcement of intellectual property rights sparked a high-profile dispute between the EU Commission and EU Parliament. The EU Commission escalated the dispute by asking the CJEU for a legal opinion about the compatibility of the ACTA international trade agreement with the EU Charter. In the end, the EU Commission withdrew its request before the CJEU had given its legal opinion, and ACTA was not implemented in the EU.

In contrast, the European Parliament’s request for the CJEU’s legal opinion in respect of the PNR Agreement is almost out of the public eye. Notwithstanding the fact that the EP decided to ask for the legal opinion in November 2014, the Curia website indicates this only arrived at the CJEU on 30 January 2015. It has also taken a further 10 weeks for the CJEU to publish the questions on its website.

In those intervening 10 weeks, the Grand Chamber of the CJEU has heard another ‘transfer and data processing’ case involving the EU Charter, Case C-362/14, Schrems – does a ‘safe harbour’ shelter states that deprive EU citizens of their EU Charter rights?

In a couple of days’ time, the CJEU’s Fourth Chamber will also hand down a quartet of judgments about privacy, passports and ID cards in Case C-447/12, Kooistra; Case C-446/12, Willems; and Case C-449/12, van Luijk.

Readers interested in international trade agreements and EU law more generally, might also look at Case T-754/14, Efler. This is a case which has been brought against the EU Commission about the ‘Stop TTIP’ citizens’ initiative. The case is now being heard by the EU’s General Court. According to the EUR-Lex website, Case T-754/14, Efler and Others concerns:

Form of order sought
The applicants claim that the Court should:
annul the Commission Decision of 10 September 2014 on the refusal to register the European Citizens’ Initiative ‘STOP TTIP’ — C (2014)6501;
order the Commission to pay the costs of the proceedings and the costs of any intervening party.

Pleas in law and main arguments
In support of the action, the applicants rely on two pleas in law.
First plea in law: By assuming that the proposed citizens’ initiative does not fall within its competence, the Commission infringed Article 11(4) TEU as well as Article 2(1) and Article 4(2)(b) of Regulation (EU) No 211/2011.[…]

The applicants submit in that regard that the Commission’s reasoning — that the intended recommendation to the Commission to withdraw the negotiating mandate for the ‘Transatlantic Trade and Investment Partnership’ (TTIP) is not directed at a ‘legal act’ within the meaning of Article 11(4) TFEU — is defective. For both the grant of the negotiating mandate and its withdrawal are decisions of the Council within the meaning of the fourth paragraph of Article 288 TFEU, which at the same time are ‘legal acts’ within the meaning of Article 11(4) TFEU.

The applicants further submit that the Commission’s additional reasoning — that the citizens’ initiative against the ‘Comprehensive Economic and Trade Agreement’ (CETA) and TTIP cannot require the Commission to refrain from recommending the Council to accept the respective negotiated international agreements, and also cannot require the Commission to recommend a decision on the non-acceptance of the respective negotiated agreements — is also defective. For it is in no way apparent from Article 11(4) TEU, Article 2(1) and Article 4(2)(b) of Regulation No 211/2011 that citizens’ initiatives directed at the abolition of existing legal acts or citizens’ initiatives directed at the non-adoption of proposed legal acts are to be inadmissible.

The applicants further submit that the non-registration of the ‘STOP-TTIP’ citizens’ initiative is also unlawful because, in any event, the proposed citizens’ initiative does not ‘manifestly’ fall outside the Commission’s competence in accordance with Article 4(2)(b) of Regulation No 211/2011.

Second plea in law: Infringement of the general principles of good administrative practice as provided for in Article 41 of the Charter of Fundamental Rights of the European Union and of equal treatment as provided for in Article 20 of the Charter

The applicant takes the view that, by refusing, in the applicant’s case, to register the citizens’ initiative directed against TTIP and CETA, although it previously registered a citizens’ initiative directed at the termination of the agreement with Switzerland on freedom of movement (‘Swiss-Out-Initiative’), the Commission did not observe those principles.