Court of Justice of the European Union

YMGE 2018

Letter from the Director

Welcome to the Court of Justice of the European Union! I am thrilled to have you as members of this committee. The CJEU exists to assess, interpret and apply EU law, enforcing its standardized practice among member states and ensuring that all EU citizens receive the full benefits they are entitled to as human beings.

I feel this committee is of special importance in today’s world. Across the globe we are witnessing a general rejection of international institutions and an atomization of the international community as a whole. Even within Europe, which has historically been at the forefront of the project for ever-closer international cooperation, many have questioned whether or not such a union ought to exist at all. While there are many criticisms to be made of all international institutions, it is important to separate out legitimate grievances from veiled attempts to seize power and influence at the expense of one’s neighbors. It was in the interest of preventing such abuses of authority that the international community arose in the first place, and therefore the degradation of key global institutions should be treated as a matter of grave concern.

In particular, the international legal order stands as one of the pillars of global cooperation. While some may deride international law as impractical or ineffective, I urge you in this committee to take a closer look. International law establishes the rules by which countries interact. Knowingly or subliminally it influences decision-making to the point that nearly every nation’s foreign ministry maintains a number of lawyers to analyze diplomatic actions and ensure they are in accord with the law. I hope that this committee leaves you with a greater appreciation for the importance of the legal tradition and with a new perspective on some of the most pressing issues facing the European Union and the world.

Be make bold choices, be willing to test your analytical and problem-solving abilities in new and different ways, but most of all, be respectful to your fellow delegates. I can’t wait to see you in committee!

Sincerely,

-Henry Suckow Ziemer

Committee History

In 1952, the Court of Justice of the European Union was established to serve as a judicil body for the fledgling European community. It was not know as such at the time however, the very idea of a European political identity that extended beyond national borders was only an experimental concept at the time. Indeed, the court was created as an appendage of the European Coal and Steel Community, the fledgling organization that, while hailed as “a first step in the federation of Europe” was primarily an economic cooperation organization. As a result, the primary duties of the proto-CJEU revolved not around interpretations of human rights or sweeping EU laws, but the adjudication of trade disputes and disagreements over contracts between ECSC member states. Indeed, the first case heard by the new supreme federal court, Union des Armateurs Allemands and others v. The High Authority dealt with concessions provided to German rail and energy companies, hardly headline-grabbing subject matter.

Nevertheless, the CJEU, or it’s original incarnation, was seen as an essential check on the High Authority of the Coal and Steel Commission. According to the initial conceptualization of this entity, known as the Schuman Plan, little to no official processes existed to check the ability of the High Authority to set economic policy for the whole of the ECSC. As a result, a judicial authority to which aggrieved parties could bring complaints against the High Authority was seen as instrumental for preserving the autonomy of both states and corporations. Only later would the CJEU assert itself more energetically into the realm of individual rights and liberties.

Despite the essential role conceived for the court by its founders, the CJEU struggled to define itself in for several decades after its formation. Indeed, it was not until the landmark case of Van Gend en Loos v Nederlandse Administratie der Belastingen in 1963 which established the principle of direct effect, one of the most important tools in the court’s subsequent ability to impact broader EU policy. Initially, the case was similar in appearance to many that had been heard by the court over its eleven year history. The dispute centered around a Dutch distribution company by the name of Van Gend en Loos and the Netherlands port authority which changed the tariff upon arrival of a shipment of urea formaldehyde. Yet despite the archetypically dry subject matter of the case, what emerged from the court’s decision was a groundbreaking conception that treaties and articles of the European Economic Community, the successor to the Coal and Steel Community, created rights which individuals and legal persons could bring before the court. In essence, the CJEU asserted its ability to act as a court of appeal for entities which felt their rights had been infringed upon. This simple declaration had an outsized impact on the CJEU’s jurisdiction, affording it a new degree of autonomy when determining which cases to take on. In practice, the Van Gend en Loos case created something analogous to, if not a supreme court, at very least an appellate system, where individuals dissatisfied with their access to judicial remedies within their home countries could turn to a supranational body for redress. However, at least initially the principle of direct effect saw the majority of its use with respect to economic issues, and while in theory it permitted the CJEU to look at violations of individual rights derived from EEC documents, Europe at the time was united around issues of trade and economic cooperation rather than a shared individual human rights framework.

Where the CJEU began its transformation into its modern embodiment can be seen in the aftermath of 1991 when the flood of post-Soviet applicants for EU membership required a large-scale restructuring of existing institutions. Of note with regard to the CJEU is how, despite the increased population and number of member states, the case load the court received remained largely unchanged. This can be attributed to superior means of mediating trade disputes as well as the ability of the court to refine its position as a judicial body of last resort. During this time period as well, the strengthening of bonds between European nations produced a larger body of treaties and policies which the CJEU could apply the principle of direct action to, meaning that where previously economic matters had dominated the court’s workload, increasingly civil and political issues began to appear on the court’s roster. The true turning point came in 2009 with the Treaty of Lisbon which formalised the modern European Union as a whole. This formalised and codified the structure of the CJEU which at this point had been gradually developing for more than half a century.

The modern incarnation of the Court of Justice of the European Union fulfils three main responsibilities. Firstly it ensures the actions of the EU are in accordance with its legal mandate as established in the Treaty of Lisbon and prior foundational documents. Secondly it maintains compliance with EU law among various member states, primarily through the application of the principle of direct action allowing it to serve as a judicial authority for EU citizens who believe their rights have been infringed upon. Finally, it interprets EU law when requested by relevant national legal bodies to help ensure compliance and the harmonization of laws among member states. To do so the CJEU is divided into two courts at its Luxembourg headquarters: the General Court, which tends to deal with the cases that more traditionally fall within its mandate since 1952, and the Court of Justice, which deal in the application of individual rights and hears cases brought regarding potential violations of these freedoms.

Topic History and Background

In this committee, we will be discussing the Right to be Forgotten, Historical Revisionism in Poland, and the rise of Illiberal Democracy in Hungary.formation of legal systems.

Topic: The Right to be Forgotten

The right to be forgotten is a concept which has arisen fairly recently in European courts concerning privacy and data storage in the digital age. Since its inception the right to be forgotten has remained a controversial issue, owing to both conflicts over the extent to which governments can regulate the internet and conflicts of laws across multiple nations with contrary domestic statutes. In essence, the right to be forgotten operates as follows: Say Person A, a French citizen was convicted of a minor crime for which they have served their sentence and since had removed from their record. However, due to a news article published after the incident, any employer who googles A’s name can readily access information about the infraction. Under a system that recognizes the right to be forgotten, A can petition a local court which will serve an order to all search engines which currently link to that article and others like it to immediately de-link those pages, meaning that in effect Person A’s crime has been removed from the digital record. However, this concept is complicated by overlapping jurisdictions and the un-territoriality of data. This means that often internet giants such as Google, upon receiving an order to de-link searches from certain pages, will do so only on the version of their search engine running in the country which served the order. In the case of Person A, Google might agree to de-link all mentions of their crime from searches on google.fra, but would say that the French court has no jurisdiction over google.com, so any employers would still be able to uncover the details surrounding Person A’s history simply by using the generic Google engine. The argument employed by these companies is that, absent a strong international legal basis for the right to be forgotten, the onus rests upon the petitioner to demonstrate each and every case where searches ought to be removed. Crucially, the vast majority of major internet companies are registered within the United States, which has yet to assent that the right to be forgotten exists as an enforceable right. Following this line of argumentation, only a U.S. court can compel a company like Google to de-link searches on google.com, meaning that no matter what other national courts may rule, there will continue to be a glaring exception to all attempts at enforcing the right to be forgotten. Running parallel to this legal challenge is the moral question of determining what sort of information an individual should be allowed to request to be removed from search engines. Initial outcry over court rulings and bills in favor of the right to be forgotten centered around the possibility of sex offenders exploiting these processes to hide mentions of their misconduct. Indeed, there have been several right to be forgotten requests for the removal of information which would likely serve the public good to remain online.

Despite these very legitimate critiques, the right to be forgotten has proven resilient and counts numerous adherents around the globe. This may be the result of the unprecedented change the digital revolution has wrought upon society at large and the unexpected permanency of information. Some advocates argue that the adoption of the right in principle allows for a far more flexible approach to privacy rights in an era where nothing seems truly private. Excessive censorship is unlikely they say given the review process already in place and the vast majority of requests will not be malicious attempts to circumvent law enforcement, but more benign requests to erase embarrassing personal data whose presence or absence from the internet is of no particular import to the general public. Nevertheless, the right to be forgotten remains a highly controversial subject in both legal and political discourse.

Topic: Historical Revisionism in Poland

The invasion of Poland on September 1, 1939 is viewed in most accounts as the official start date of the Second World War. The war was launched by Germany, which was quickly joined by the Soviet Union, and after a period of brief but savage fighting, Poland was partitioned between the two empires. Later in 1941 when Germany declared war on the Soviet Union the entirety of former Polish territory fell under the control of the Third Reich, but not before hundreds of thousands of Poles were executed or imprisoned by the USSR. Poland under German rule was also the site of numerous concentration and death camps, including the notorious Auschwitz-Birkenau death camp, utilized by the Third Reich in its perpetration of the Holocaust. Polish citizens, both Jewish and non-Jewish, suffered greatly under Nazi rule, with approximately six million killed between 1939 and 1945.

The history of Poland during this time is therefore no easy task to analyze, with countless instances of both collaboration and resistance. While the Polish Home Army actively resisted Nazi forces throughout the entire period of occupation, other Poles served in the German government, some as policemen or informants working on behalf of the occupiers. No single narrative dominates Polish history at the time since the experience of occupation manifested differently for each and every individual. Nevertheless, as a matter of national history and identity, debate has arisen in Poland concerning how Poland’s role in the Holocaust ought to be acknowledged. A key phrase in this controversy is the term “Polish death camps” being assigned to sites of notoriety such as Auschwitz-Birkenau and Treblinka. Members of the governing Law and Justice Party argue that this term abstracts the actor, painting Poles as the perpetrators of what was fundamentally a Nazi atrocity. Furthermore, such references to Polish participation in the Holocaust neglect to acknowledge the acts of resistance and heroism occurring simultaneously. In the legal realm, debate has crystalized over the Act on the Institute of National Remembrance, which was created to prevent historical revisionism and, implicitly, Holocaust denial. Those in favor of striking terms such as “Polish death camps” from common parlance argue that assigning fault to Poles for Nazi war crimes constitutes an act of revisionism as well and should be criminalized. Detractors from this viewpoint see such attempts as revisionist in a different way, denying historical fact in favor of a nationalist meta-narrative which frees Poles from all manner of accountability. The debate today therefore centers around how far a country can go in defining its own history, and how its national history ought to interact with the rights of its citizens. As with history itself, the answer is never straightforward.

Topic: Illiberal Democracy in Hungary

Viktor Orbán, leader of the conservative Fidesz Party and Prime Minister of Hungary, is famous for having declared that “the era of liberal democracy is over.” His ascent, alongside a seeming resurgence of illiberal leaders the world over, from the United States to Russia and Turkey, was viewed with a great deal of fear and outcry, not the least from EU commentators. But Orbán, like many of his contemporaries, is a symptom of a changing world order, one in which the belief in liberalism, broadly constructed, can no longer be taken for granted. He assumed power shortly after the 2008 financial crisis, in which the European Union was particularly afflicted by the crash of the Euro. This demonstrated the first crack in the facade of the European community, which had previously stood as an exemplar of international cooperation and open financial institutions. Part of what caused the crisis, and later prolonged it through the adoption of ineffective or counterproductive policies, was the lack of flexibility or, as Orbán might put it, respect for state sovereignty in the European Union. This meant that states with markedly different political and financial institutions were by and large treated as identical for the purposes of EU policy. In the run-up to the Eurozone crisis this took the form of irresponsible borrowing, as countries like Greece and Spain took out loans on German interest rates, incentivizing them to withdraw more than they could realistically pay back. Post-crisis, the austerity programs imposed on countries which could not repay their debts led to cutbacks in government budgets when in reality, deficit-spending programs likely would have served the countries involved more effectively. No sooner had the European Union recovered from the economic shock, than the outbreak of the Syrian civil war and unrest in North Africa and the Middle East generally prompted a wave of refugees seeking asylum in European nations. Once again, many EU states chafed at the German-led plan to redistribute asylum seekers throughout the entire membership. These nations, Hungary among them, saw the plan as an infringement upon their fundamental right to control their own borders, with radical nationalist movements expounding a xenophobic hatred towards migrants that compelled many politicians to adopt a more hard-line stance on the issue. Orbán vehemently rejected the proposal, and went so far as to set up razor-wire border fences to halt the movement of refugees into Hungary in blatant opposition to EU regulations. The third shock to the European community came in 2016 when the United Kingdom voted in a referendum to invoke Article 50 of the Treaty on European Union and begin negotiations to leave the EU. These three successive shocks demonstrated the fragility of EU institutions and triggered a wave of speculation regarding the future of a united Europe.

Orbán and his party rode this wave of euroskepticism without fully breaking from the European Union despite repeatedly critiquing the supposedly heavy-handed manner with which dictates were handed down from Brussels to member states. He is seen by advocates of an ever-closer European community to be a dangerous force, similar in character to strongmen like Vladimir Putin or Recep Tayyip Erdogan. Nevertheless, Orbán enjoys strong popular support within Hungary, where his populist politics and message of opposition to the seemingly monolithic EU bureaucracy has won him and his party a controlling plurality in the nation’s parliament. Orbán’s seeming ascendancy raises more profound questions for the EU as a whole, and serves as a reminder that the teachings of liberalism should not be viewed as universally accepted and they may not always be applicable in times of crisis.

Current Situation

The Right to be Forgotten

The right to be forgotten was codified in EU law with the recent passage of the General Data Protection Regulation (GDPR) in 2018. Article 17 of the GDPR in particular states that “[t]he data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay” when one of a number of conditions applies. This represents a landmark advancement in the codification and standardization of EU law with respect to this right. Prior to the adoption of the GDPR, already a strong precedent for requesting the de-linking of personal data had taken hold among EU member countries, with Google being the subject of the vast majority of requests. The European Union and national agencies within member states have also begun to push for the removal of loopholes to requests for de-linking, attempting to bring companies such as google to de-link articles not just on national sites but internationally as well. Although Google, Facebook and the like are all registered within the United States and as such largely immune to direct legal action from European courts, the European Union maintains significant capability to compel these companies into compliance through a variety of alternative means. France, for instance, launched an antitrust investigation into Google in response to their refusal to de-link sited from google.com in addition to those de-linked on its national subsidiary.

With the adoption of the GDPR the European Union possesses another powerful tool to bring multinational internet providers into compliance. Article 3 of the GDPR requires a company to comply with the regulation whenever it collects data on an EU citizen, meaning that even large multinational corporations are required to take steps towards compliance if the wish to do business in the European Union. This has significant implications as the EU currently constitutes, as a whole, one of the three largest economies in the world. Losing access to this market could result in major backlash for any company found in violation of the GDPR. For the purposes of this session, the Court of Justice of the European Union will be investigating the right to be forgotten under its mission to harmonize EU laws and ensure the European Union is acting in accordance with its mandate.

To this end, the court will take up the case of a U.S. based company which seeks to continue to link to articles on their non-national site which an EU citizen has requested to be erased under the right to be forgotten. The CJEU will first consider whether the right to be forgotten exists as an inherent right of EU citizens, enforceable as an extension of the right to privacy. Contingent upon this decision, the court will then determine whether the action by the U.S. company is sufficient to remain in compliance with applicable legislation, including the GDPR and determine appropriate legal remedies including, but not limited to, investigation for fraud, sanctions or revocation of its right to operate in EU countries.

Historical Revisionism in Poland

As of 2018, the Polish government approved a controversial amendment to the Act on the Institute of National Remembrance, making it a criminal act to “ascribe Nazi crimes to the Polish Nation or to the Polish State.” The amendment prompted both international and domestic outcry among those who claimed it was an attempt at exculpating Poland from its participation in the Holocaust and other human rights abuses. Meanwhile, criticism from both the United States and Israel has placed international pressure on Poland change the legislation.

Others have charged that the language of the amendment makes is too vague and susceptible to broad interpretation. This poses a threat to freedom of speech as it could theoretically be used for anything from the suppression of news agencies to the jailing of political rivals. This has prompted demonstrators to vocally detail Polish participation in Nazi war crimes and call for their own arrest. The refusal of police to comply has only cast further aspersions on this law. The CJEU will consider Poland’s new law in the context of its relationship to the freedom of speech, enshrined in Article 10 of the European Convention on Human Rights. Of crucial importance to this matter is Section 2 of this article, which reads:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The court will consider arguments focusing primarily on whether the amendment to the Institute of National Remembrance Act is necessary for any of the purposes enumerated above, especially in relation to the protection of health or morals and for the protection of the reputation or rights of others. Once the court has determined its verdict, it will then attempt to formulate a set of recommendations for Poland and other nations to implement with respect to legislation concerning how historical events are portrayed and remembered within their borders.

Illiberal Democracy in Hungary

Prime Minister Orbán’s statements concerning his desire for illiberal democracy are certainly worrying, yet from a legal perspective the presence of liberal democracy is not a precondition to a country’s membership in the European Union, nor is the absence of liberal democracy grounds for its expulsion. Nevertheless, as a comparatively recent addition to the European community, Hungary was subject to the 1993 Copenhagen criteria upon receiving its membership. The three criteria are as follows:

  • Stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.

  • A functioning market economy and the capacity to cope with competition and market forces in the EU.

  • The ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union.

Taken as a whole these three criteria contain many of the same notions which are seen as part of traditional liberalism. Of particular note are the first and second, which jointly require a country to employ a democratic system of political organization, and to nurture a free market economy open to trade. Orbán insists that it is not contradictory for a country to retain democratic institutions, observed through the presence of regular and competitive elections, without adopting the cosmopolitan, multicultural and globalist ideals typically espoused by liberal thinkers.

The CJEU will, in this session, act in accordance with its more recently assumed role of promoting fundamental rights within the EU and member states to assess Orbán’s claim. The court will analyze Hungary’s track record in compliance with both the protocols laid down in the Copenhagen criteria as well as the freedom of expression, movement and refugee rights enshrined in applicable international treaties and EU policies.

Based on the findings from these the court will determine whether Hungary has violated EU law to a sufficient degree as to warrant its expulsion from major EU institutions, or barring that, a plan of action to reorient Hungary on the path toward liberal democracy.

Questions to Consider

How closely should EU legal institutions monitor the conduct of member states? Is it better to have a proactive CJEU or a more reactive body?

Should all individuals have a right to be forgotten? Is this feasible in the internet age?

How, if at all, should governments engage with historical memory?

Why is “liberal” and “illiberal” an important distinction to make with reference to democracy?

What makes the CJEU different from other international legal bodies such as the ICJ or ICC?

Some scholars have described the nature of international law as “archipelagic” meaning that there are both well charted and large “islands” where common norms are generally accepted, and murkier depths where there is little to no consensus, how might this description apply to the topics that will be covered in this committee?

Appendix: Art. 17 GDPR Right to erasure (‘right to be forgotten’)

  1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

    1. the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

    2. the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;

    3. the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);

    4. the personal data have been unlawfully processed;

    5. the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;

    6. the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

  2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.

  3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

    1. for exercising the right of freedom of expression and information;

    2. for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

    3. for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);

    4. for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or

    5. for the establishment, exercise or defence of legal claims.