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Institutions of the EU
represents interests of EU as a whole
Can propose new legislation (Member States can encourage but not propose)
Council of the EU
Consists of the heads of states
Represents the people of the EU
Court of Justice of the EU (CJEU)
Is making a preliminary ruling if there is a doubt of the interpretation of EU law. Upholds the rules of European Union law.
Legal Framework in the EU
TEU --> Treaty on the EU (= EU constitution)
TFEU --> Treaty on the functioning of the EU
Charter of fundamental rights of the EU
Regulations / Directives (Art. 288 TFEU)
Full or minimum harmonisation --> either it is binding or it is provided for that there can be a harded ruling
Directives: are addressed to countries and these have to create their own national law by chosing their own methods and forms.
Regulations: binding in entirety and directly applicable to all member states
--> Information Society Service (Defintion and cases)
The internal Market (= country of origin principle)
Home country control
any services provided for remuneration, at a distance, by electronic means, and at individual request of recipient of services.
Any service normally provided for remuneration (also includes free services as long as commercial nature)
At a distance = not simultaneously present
By means of electronic equipment for the processing and storage of data
At the individual request of a recipient of a service
Question if Uber should be considered merely a transport service, an electronic intermediary or an ISS?
Uber service consists of two services (transport service and connecting driver and customer), but the court ruled that these services are linked together, thus no information societ service and so the E-Comm directive does not apply.
Therefore, no country of origin principle.
AirBnB Ireland service “by means of an electronic platform, is intended to connect, for renumeration, potential guests with professional or non-professional hosts offering short-term accommodation services” à covered by information society service
Conclusion that these were two seperate services thus it is an information society service and therefore the e-commerce directive applies
AirBnB could rely on country of origin principle
Freedom of Speech / Freedom of Expression
Freedom of Speech:
The right to express one's ideas
Can be limited when the harm it brings outweighs the benefits (defamation, obscene content etc.)
Freedom of Expression (Art. 10(1) ECHR):
The ability to convey ideas irrespective of the medium used, through speech but also other forms.
Freedom to hold opinions
Freedom to receive and impart information and ideas
Subject to limitation (Art. 10(2))
if prescribed by law
and are necessary in a democratic society, interests of national security, for the protection of health or morals etc.
Can be subject to limitation also by different fundamental rights
freedom of privacy
Two factors to consider:
The nature of information in question and its sensivity for the data subjects private life
the public's interest
IP rights (copyrights etc)
Historic reasons for freedom of expression
Marketplace of ideas
Free expression strengthens democracies
Tolerance: The freer the exchange of ideas, the more tolerant the society
Prevents governments to silencing ist opposition
The public space
Local government governs public space, but can also limit your rights in the public space. But there are fundamental rights such as freedom of expression that protects people from state interference.
CJEU Cases regarding Freedom of Expression
Requirements for ISP to install filtering software for copyright enforcement
CJEU decided that is not required as it potentially undermines freedom of information/speech
Parody as a way of expressing oneself, but must strike a fair balance between interests and rights of persons and freedom of expression
Two criterias of parody:
Evokoe an existing work but noticeably diferent
Constitute an expression of humour or mockery
Balance of freedom of expression with freedom of privacy (right to be forgotten)
Court held that freedom of privacy bears more importance. No criteria though as when and how this limitation of a freedom can be made
Difference between CJEU and ECHR
Concerns Directives, regulations à preliminary rulings
Two people cannot sue or argue directly at the CJEU, first the national court, and then to the CJEU (horizontal relations)
Covers cases between citizens/ legal persons and a state (vertical relations)