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Erstellt / Aktualisiert 22.12.2020 / 11.01.2021
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Institutions of the EU

European Commission

  • 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

European Parliament

  • 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.
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Legal Framework in the EU

Primary sources

  • TEU --> Treaty on the EU (= EU constitution)
  • TFEU --> Treaty on the functioning of the EU
  • Charter of fundamental rights of the EU

Secondary sources

  • International agreements
  • National legislation
  • 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
  • Case law
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E-Commerce Directive

--> Information Society Service (Defintion and cases)

E-Commcerce Directive

  • The internal Market (= country of origin principle)
    • Home country control
    • Mutual recognition

Defintion ISS:

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

Cases:

  • Uber 
    • 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
    • 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
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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.
  • Consists of:
    • 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)
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Historic reasons for freedom of expression

  • Marketplace of ideas
  • Free expression strengthens democracies
  • Personal autonomy
  • Tolerance: The freer the exchange of ideas, the more tolerant the society
  • Prevents governments to silencing ist opposition
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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.

 

 

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CJEU Cases regarding Freedom of Expression

SABAM

  •  Requirements for ISP to install filtering software for copyright enforcement
    • CJEU decided that is not required as it potentially undermines freedom of information/speech

Deckmyn

  • 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

Google Spain

  •  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
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Difference between CJEU and ECHR

1.CJEU

  • 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)

2.ECHR

  • Covers cases between citizens/ legal persons and a state (vertical relations)