Dear Micro$oft, The Talk is On and Heads Will Fall

One judge Francis told Microsoft on the 25th April 2014 to get its Global Criminal Compliance Team together and obey a warrant issued for its American headquarters. That district court judge could not care less if the data the warrant demanded was not physically stored within the jurisdiction of the Court. He did not even consider the Hague convention or the fact that the data is stored in the equipment of another company, a subsidiary, based within the EU. He did not even give EU legislation, or the Safe Harbor principles, a glimpse. He cited US law and bluntly told the corporation that if its US headquarters do not impose it on its limbs overseas, it shall be penalised.

That is one cheeky judge – question is, will Microsoft call his bluff? More importantly, what are the implications for the country where the data is physically stored, namely Ireland?

Directive 2006/24/EC: Too Quick To Blow Your Horn!

UPDATE 20/04/2014: A demonstration of EU’s affection towards intelligence agencies. Lovely article by Gavin Sullivan on AlJazeera about the future use of secret intelligence intel as evidence by the CJEU. Do you still believe the EU will attempt to restrict their functions?

Since this morning when the ECJ declared the Data Retention Directive invalid, the view that the invalidity extends to the state functions of the member states slowly began to emerge. I do not understand what caused that impression.

The Directive referred to a blanket retention of all public telecommunications for a period from six months up to two years. The EU Commission promptly issued a memo  concluding that a finding of invalidity of the Directive does not cancel the ability for Member States under the e-Privacy Directive (2002/58/EC) to impose the retention of data. This surprisingly seems to dash the hopes of many.

Data retention under the e-Privacy Dir has to be proportionate to the purpose for which it needs to be performed. It also needs to last a specific (preferably short) term. How can these be compared with the blanket retention the 2006 Directive commanded?

CSI MANUFACTURING v DUNN & BRADSTREET: Coleman v MGN round II

Mr Coleman was unfortunate enough to have his picture publicized next to an article about hooligans and drunkards by the Daily Mirror in 2003. That picture was also allegedly publicized in the internet edition of the said distribution, open to the worldwide public by subscription – but did that actually result in absolute geographical restriction? (read below). Mr Coleman claimed damages for defamation, damages for breach of contract, negligence, breach of duty and breach of statutory duty. 9 years later, the Supreme Court could not be furnished with evidence of the internet publication by the plaintiff (and obviously hard to ascertain the defendant kept an archive of publications so old for the sake of discovery), and therefore, since both the defendant and the paper’s audience were restricted to the UK, it lacked jurisdiction to decide in favour of the plaintiff.

Come together, Right now… Over me

I did not want to write about this matter yesterday because I was emotionally charged. Let me tell you that a day has not made a difference.

Yesterday an ex parte application was brought before Hedigan J, aiming at inducing a woman into a cesarean section (Waterford Regional Hospitan v AD).

The thing that distinguishes a slave to a free man is the right of self-determination; the ability for one to make their own choices, for themselves. A slave can be a political slave, a social slave, a sexual slave… no matter what kind of a slave they are, they do not possess the right to exercise their free will – they do not own their body.

The super-law of the www: a monster in embryonic state?

 

Nobody would like to wake up one morning to the view of  Godzilla smiling through their window; just because we choose to ignore science’s monstrosities though, it doesn’t mean they ‘re not there – I am pretty sure a visit to a genetics lab would thoroughly convince us to spare a thought.

The internet is not very far from those scary test tubes. It is an everyday experiment where millions of brains around the world come up with new ideas, some good, and some evil. These ideas have the same effect on us as Godzilla: we do not feel the need to protect ourselves until we feel the thing breathing down our necks. But we are there, lost in a world of digits and semicolons, unfolding our past, present and future to the unknown. Would we ever walk naked in the street holding a banner that tells our life story for the world to see? I do not think so.

Fiscal Compact Treaty, with a cherry on top!

When I was little I had this lovely Paddington Bear book called the “Knikerbocker Rainbow Glory”, a story about this amazing multilayered ice-cream that made Paddington and his family travel through pouring rain to get to it.

The freshly signed fiscal agreement is the ultimate reminder of that ice-cream. First of all, no one knows what to call it; the latest trend is “let’s call it everything”, aka fiscal compact treaty, I believe it’s utter nonsense, I’m sorry to point out there is no such thing.

So what is it then and how do we call this new invention? The fact that it is a product of the Institutions of the European Union is clearly confusing, as academics – in all fairness I have only heard this from academics – presume it is not an EU Treaty since the UK has no intention of signing it.

May I focus your attention on the following:

Art 1.1 – They brought the paragraph at the bottom of the last draft into the first article of the text, highlighting the “economic pillar”. Such a pillar is definitely not apparent in the Lisbon Treaty, although mention of economic stability & growth are prominent in the preambles of both TEU and TFEU. I don’t know how a mere International agreement can add a pillar into EU’s structure? I did however notice they have rephrased, supposedly acknowledging it rather than creating it, but this pillar is clearly a new pillar and it goes beyond the single market structure.

Art 1.2 – This Treaty shall apply in full to the Contracting parties whose currency is the Euro. Is the UK’s currency the Euro? No. Does the UK have a long tradition of opting-out? Yes. Is this Treaty indirectly compulsory for Member States outside the Eurozone? No. Is the UK opting out again? Most definitely.

Art 2.1 – This Treaty shall apply insofar as it is compatible with the Treaties on which the European Union is founded. An International agreement that has to comply with EU law; it gets more interesting by the minute.

Art 7 – Introduces a whole new mechanism on the deficit procedure, while removing any authority for recommendations from the Council. Are we abolishing Art 126 TFEU? This article is literally reversing qualified majority.

Art 8.1 – The Contracting Parties of this compact are entitled to bring it into effect through Art 259 & 260 TFEU.  Section 3 declares the agreement a ‘special agreement..within the meaning of Article 273 [TFEU]’. Art 273 applies to agreements between the States ‘which [relate] to the subject matter of the Treaties’. So how does it apply to this contract which is not part of those, already signed for by a different number of member states, Treaties? How can it give the ECJ jurisdiction on grounds of international law and at the same time interfere with/amend primary EU law?

How broadly does one need to interpret this ‘subject matter’ in order to justify the context – as broad as to give the ECJ jurisdiction rights on all international agreements that relate to it? I fail to see how this is legally sound. I would maybe accept the application of Art 272 TFEU in this case but 273, in my opinion, takes things a little too far.

Art 15 – This Treaty shall be open to accession by Member States of the European Union other than the contracting parties.

Art 16 – (And this is the fun part)
Within five years, at most, of the date of entry into force of this Treaty, on the basis of an assessment of the experience with its implementation, the necessary steps shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, with the aim of incorporating the substance of this Treaty into the legal framework of the European Union.

In other words, this is a Treaty, but not an EU Treaty as it is not incorporated into the legal framework of the EU – no, pardon moi, its substance is not yet incorporated. Allow me to say that it’s substance is well incorporated into the Treaties, it is the mechanism that is being established here.

Is this “compact” a form of a ” joint directive” under the TEU & TFEU, that can be dealt as such? Then the people in Vienna had it all wrong back in ’69 as

‘ (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; ‘

…  one that interferes with EU primary legislation, that only EU Member States can ratify and the ECJ has full jurisdiction to adjudicate on.

Wow, this new Fiscal Compact International Treaty has super powers!

EU Fiscal Treaty, Referendum: The Bets are On

I keep hearing people say a referendum will probably not be necessary for Ireland to ratify the 2012 Treaty, I read academics’ opinions on the Irish Times and elsewhere and I can’t help but wonder .. what has driven them to such a conclusion?

With my poor knowledge of legal matters I know the following:

1. Financial matters of the State are a very touchy subject in the State, so touchy in fact that the Courts would rather abstain – in the name of separation of powers of course
2. Money Bills are exempt from Article 26
3. In the 3rd Draft of the Treaty it read that every Member State would have to hand over their annual Budget to the Council, and that although the Council cannot alter it, they need to make sure it complies with the terms of the Treaty and that it results in a surplus of a certain percentage BUT
4. If the Member State does not end up in such a surplus will be penalised
5. The Member States that refuse to ratify the Treaty will be excluded from the financial aid/bailout system.
6. There are no opt-outs, there is no discretion of the State.
7. Ireland has no realistic choice in the matter, it’s do or die.

I strongly feel like bringing up Crotty here, as bets are on an individual to question the ratification because the opposition is too weak to get the gears of Article 27 turning and the President, as good as his intentions seem, would probably not shake the waters.

This Treaty lays the grounds for the EU to walk all over this country’s economy, if not in 2012, it will be soon enough. Henchy J was right in Crotty, we have gone from an economical Union to a political one, a federal one with communistic traits for the matter, I reckon – I have a soft spot for Henchy’s rulings.

Click here to download the freshest compact version of the Treaty. I should note that Article 1.1 brings us back to pillars (and just when we thought we got rid of them!), so now we have a new “economy” pillar and the Constitutional insertion is gone (or supreme law of the the States), as long as the Member States implement the measures and provide for legislation immediately post-ratification.

The bet is a double one and I take offers:

i) Where will the Treaty be ratified? (I vote for Brussels)

ii) Who will challenge it first?