 I'm delighted today to welcome the president of the European Court of Justice, Cun Lennartz, and he has been in that position since October 2015, but prior to that he was vice president and has been sitting on this court from 2003. He was also a judge at the court of first instance of the European communities. He has a really excellent CV professor at the College of Europe in Bruges studied law in the Catholic University of Louvain, or Louvain, I think it's for it to now, and in Hartford. And he was a classmate in Hartford of the future Chief Justice of the US Supreme Court, John Roberts. Now, we let Cun tell us whether that's a great thing to have been once the judge gets going. But today we're going to talk about the Court of Justice, obviously, and I know that in his lecture, Justice Lennartz is going to maybe outline some of the very relevant cases that are now relevant to all European members. There was a time when the law court went on in Europe as a small, slightly underdeveloped country. We weren't always that interested in what was going on, but everything nowadays is of interest to anybody. Thank you, Madam Chairman. Thank you, Nora, for this very kind introduction. Ladies and gentlemen, it is an enormous pleasure for me to stand here today and to share with you some ideas about the development of the case law by the Court of Justice of the European Union. It's a particular honour to do that in front of this Institute for International European Affairs, an institute which I know from many years back already, and I think it's important that we can engage with one another in a question-and-answer session in order to understand better, for me, what's happening here, for you, possibly, what's happening in our court. And indeed I chose as a title the Court of Justice in an Uncertain World, because we cannot deny that throughout the past decade it has become clear almost common place to suggest that we live in an ever more complex and fast-changing world. The European Union and its member states face serious challenges. There is a constant threat of terrorism. Maybe you're less confronted with that now in Ireland in the present context, but I can tell you on the continent we definitely are. Europe has been through a serious banking crisis that does apply also to this country, and large-scale migration has caused real political tensions within and among the member states. And I stress that I'm using migration within the meaning it ought to be used, that is not like it was used in the debate, if you can call it a debate, preceding the referendum on Brexit. Migration is migration of third state nationals into the European Union. If a Bulgarian or a Polish citizen comes to Ireland, works and lives here, that is not migration, that is exercise of free movement rights by Union citizens. I speak about migration from third state nationals. All these societal challenges found their way in the docket of our court, and they're very important. Each one of these challenges has been labelled in the press sometimes as existential threats to the European Union as an integration project. So our court of justice was asked to address these challenges, like it always goes. A problem arises, some political responses develop, and thereafter a court is asked to rule on the legalities, on the legality of these political responses, and to interpret the law which came about coping with these challenges. I will illustrate what our court does, first by reference to the fight against terrorism, then I shall say something about the refugee and asylum crisis, and I'll close with an example on the banking crisis, and I'll take an Irish example. First terrorism, as events in Paris, Brussels and Nice have tragically illustrated. The struggle against terrorism is one of the great challenges that we in Europe will continue to face for years to come. Executive authorities, both at EU and at national level, are keen to throw the net of surveillance as widely as possible in order to identify potential terrorists before they bring their murderous plans to fruition. However, one of our shared European values is that in the absence of proper evidence giving rise to suspicions that someone has committed or will commit a crime, every person is free to go about his or her everyday business without let or hindrance, safe moreover in the knowledge that his or her private communications are just that, private. In the Digital Rights Ireland case, the court was called upon to arbitrate between those competing imperatives. As you will recall, the data retention directive of 2006 required member states to oblige telecommunications service providers to keep a record for at least six months of data relating to electronic communications for the purpose of investigating serious crimes, including of course terrorist activity. In substance, the court of justice ruled that the retention under the directive of information in respect of private communications generally, regardless of any evidence of a crime, was not proportionate to the objective pursuit. The court held that the union legislator was under the obligation to limit any interference with the fundamental rights enshrined in article 7 and 8 of the charter that is the right to privacy and the right to protection of personal data, so any interference with those rights had to be limited to what was strictly necessary. In that respect, the union legislator was to lay down clear and precise rules governing the extent of the interference with those fundamental rights. Since the legislator of the union had failed to do so, the court held the directive to be invalid. It's the most recent and the most sort of pressing example of a wholesale quashing of a legislative act of the European Union adopted under the ordinary legislative procedure by the European Parliament and the council, both deciding with a majority vote on a proposal from the commission. What should now happen with national legislation having a content similar to the provisions of the EU directive that was declared invalid? In other words, does the ruling of the court of justice mean that national legislation with similar content is also invalid and contrary to the charter of fundamental rights of the European Union? That question has been raised in a case tele-to-sferion, a Swedish telecommunications company. That company notified the Swedish post and telecommunication authority the day after the digital rights judgment, so you see how Europe works as a network and Irish case leads to invalidation and the knock-on is that the day after the judgment, the Swedish telecommunications authority is being notified by the main Swedish mobile telephone operator. We are no longer conserving now the metadata about who called whom and from which location stop it all because it's invalid. They said first that they had taken the decision to cease retaining communications data and second that they would delete the data already registered. The company considered indeed that the Swedish legislation on data retention was incompatible with EU law that is with the general electronic communications directive of 2002, specifically article 15 of that directive, interpreted in the light of these very same articles 7 and 8 of the Charter of Fundamental Rights of the European Union. Since the authority did not agree, the case was brought before the Swedish court. Likewise, in the United Kingdom, actions were brought challenging the British data retention rules which authorised the Home Secretary to require public telecommunications operators to retain all communications data for a maximum period of 12 months, the double as in Sweden. So the Cammaretten i Stockholm, that is the administrative court of appeal of Stockholm Sweden and the Court of Appeal for England and Wales UK referred preliminary questions to the Court of Justice in order to ascertain whether a general obligation in the national legal order to retain data is compatible with European Union law. Advocate-general Sorgmansgård Ö considered in his recent opinion in that case that an obligation to retain data may be compatible with EU law in so far as strict requirements of proportionality are met. The court has now to decide and to set out the criteria on the basis of which the referring courts are to rule on the compatibility of their respective national data retention rules with EU law that is a 2002 directive as interpreted in the light of the charter. The judgement will be delivered next Wednesday. Grand Chamber judgement, 15 judges under my presidency, Teile Tu, Sferige, Watson and others. So you will see. I think the judgement is very transparent. In a world interconnected by technology where one click may be enough personal data to be transferred outside the European Union, the fundamental right to privacy must also have an external dimension. In order for that right to privacy to be effectively protected, the protection cannot be limited to situations where the processing of personal data takes place within the EU, but it must also apply to situations where personal data are transferred to third countries. That is why the EU data protection directive, 95, provides that national authorities and also the European Commission must assess whether the third country where personal data are to be transferred from the European Union to that third country, whether that third country offers an adequate level of protection. In the Seminole Shrems case, referred by the High Court to our court, High Court here in Dublin that is, an EU citizen on Austrian national Maximilian Shrems whom I met after the judgement personally in a conference in Vienna and he's a bright young man, age wise he could be my son, he's the age of some of our daughters, a young man, very dynamic and he's a last student writing a doctoral dissertation on privacy and the internet. So that's the origin of the case. So he made a complaint to the Irish Data Protection Commissioner on the basis that Facebook's Irish subsidiary sent data including his personal data to the United States. Surely he had ticked the boxes which you need to tick in order to open a Facebook account but if you don't tick the box then the whole thing blocks and you can't actually open the account. So I said that is not a well informed and a free consent. I tick boxes but that was, how do you say that in English, a contrada desion. I had simply to adhere to the conditions but I had no influence over them. So he now said I did not really agree and he asked the Irish Data Protection Commissioner to block the transfer of the data to Facebook International in the United States. His complaint was rejected actually because the Irish Data Protection Commissioner considered that she was not in a position to adhere to the complaint whatever might have been her sympathy for the complaint because there had been a commissioned decision based on article 28 of the directive of 95 finding that the level of personal data protection in the United States was adequate and that decision dated back to May 2000. Notice before 9-11, now in the meantime a certain Mr Edward Snowden came along and revealed what happens with those data on the part of the National Security Agency. So Shrem said what might have been correct in May 2000 has definitely changed after 9-11. There is no real guarantee. So he brings the case before the Irish High Court here in Dublin calling into question the validity of the commissioned decision of May 2000 finding that the United States ensured an adequate level of personal data protection. On a reference for preliminary ruling by the High Court, our court held that the notion of adequate protection must be interpreted as meaning equivalent protection, not identical but equivalent equal level protection, thereby ensuring that the transfer of personal data outside the EU does not undermine the level of protection within the EU. Most significantly, since the safe harbour arrangements, that's the name of the US arrangements, allowed for the United States National Security Agency to have access, I quote, on a generalized basis to the content of incoming electronic communications from across the Atlantic, that is from Europe. That access was found to constitute such a serious and intrusive breach of the fundamental right to privacy that, so the Court of Justice said, it compromised that access compromised the very essence, the very essence of the right to privacy and to protection of personal data. Therefore, the court reached the conclusion that the commissioned decision was invalid. To my knowledge, it is the only case so far in which the Court of Justice of the European Union held that an act of a union institution, because this is a commission act, validating the safe harbour arrangements as adequate protection, that this commission act infringed the essence of the fundamental right, of a fundamental right guaranteed in the charter. And lawyers know what for a button you press when you say that the essence of the right is breached. It is an absolute bar to any justification for that decision. So the Court did not even go into proportionality etc, which it did in digital rights. It was not even needed here because the very essence of the right was breached and that can never be redeemed. Let's come now to the second societal challenge currently faced by the European Union. I'm referring here to this large scale migration from third countries into the European Union. Allow me to briefly illustrate the Court of Justice's answer to this challenge by looking at three recent judgments, all of which 2016, each of which relate to a different aspect of the European common asylum system. The first case concerns the qualification directive, the second, the doubling three regulation and the third, the reception directive. First, the qualification directive. It aims to establish a uniform status for all beneficiaries of international protection. Under that directive, Member States shall allow freedom of movement within their territory to the beneficiaries of international protection. Without going into the details, there are two forms of international protection. You have the refugees and you have the beneficiaries of subsidiary protection. The beneficiaries of subsidiary protection do not qualify under the Geneva Convention as refugees in that they are not individually persecuted, but all the same they need international humanitarian protection against, for instance, the consequences of violence in wartime. That's the main example, think about Syria. In the allo and also case referred to us by a German Oberlandesgericht Court of Appeal, the question arose whether the freedom of movement, which the qualification directive guarantees freedom of movement in the Schengen space, whether that freedom of movement for the beneficiaries of international protection under the qualification directive was to be interpreted as conferring also the freedom to choose a place of residence. And this will beneficiaries of subsidiary protection who are in receipt of welfare benefits. And the argument of the applicants who wanted to freely choose their place of residence was that the right to choose for a person to choose his or her place of residence is an important aspect of individual self-determination. Like all of us, we go and live where we want. These people beneficiaries of international protection, they are not criminals. They haven't done anything wrong. They should be taken care of with compassion. So they should like us in principle be able to choose their place of residence. Yes, but said Germany, they are receiving welfare benefits because they have no income, no direct access to the labour market. They don't know the local language, et cetera. So they need help, welfare benefits, and they should be integrated in the local society to have any chance of coming to a better life and to be again self-sufficient to organise their life from there onwards. So the court replied as follows. It first observed that the qualification directive seeks to establish a uniform status of protection for refugees and beneficiaries of subsidiary protection. The two categories I was just explaining. And since under the 1951 Geneva Convention, to which the qualification directive explicitly refers, refugees enjoy the freedom to choose their place of residence, the same applies as a matter of principle to the beneficiaries of subsidiary protection. That's the first step in the reasoning. The principle is freedom of choice of the place of residence. Second step, the court of justice ruled that that freedom to choose one's residence is not absolute. However, the limitations, exceptions, must be interpreted strictly. They may not be introduced for financial reasons to spread the financial burden over local administrations, because there the court said money can be compensated. If one is a bigger burden, you can have financial account settlement between all the public authorities involved. That is not a sufficient reason to break away from the principle of the freedom of choice of the place of residence, which was the National Administrative Court, adduce the necessary evidence in that national court that the spreading of beneficiaries of subsidiary protection is huge numbers of people fleeing warfare. That's what it is, right? All these numbers you saw come in in 2015. To the extent that it is necessary to facilitate the integration of these people in the local society, not to have ghetto formation, also to spread the burden over the social integration services such as language teaching, job training, et cetera, there you need a spreading to make that practically possible. That, the court says, is a legitimate objective. In order to break away from the principle of the freedom of choice of residence. And on that basis, the court accepted that the refugees and the subsidiary protection seekers enjoying social benefits, that they may be spread over the territory when needed, when strictly needed, in order to integrate them better in society and to give them chances of getting access to the labour market after language training, civil, what do you call it, burger schaps parkour, it's a Dutch word. It's citizenship education, I think you would say in English, so that you sort of teach the people how you behave in society. Civics, that's the word I was thinking, the civics education, exactly. That's exactly what it is. So you see how our court must really go about it. Furthermore, that's the second example. The European common asylum system establishes mechanisms and criteria determining the member state responsible for examining an application for international protection. Those are the famous Dublin regulation criteria. I was first a Dublin convention in 1990 concluded here in Dublin. That's why this name is there. When you have a regulation of the European Union with the name of a city before it, then you know that that regulation is in fact the union legislative act following up to what started one day as a convention concluded as an agreement between the member states in a particular city. That's why you have the Brussels regulations following up to the Brussels convention on recognition and executor of judgments in civil and commercial matters. Brussels one, Brussels two. You have the Rome regulations. That's all the choice of law rules of the European Union. Rome one, Rome two, Rome three, Rome four. And here Dublin, that was the place where the criteria for dividing the responsibility between the member states with a view to examining the applications for international protection, whether it be refugee status or subsidiary protection status would be taken on. In the Gaiselbach and Karim cases, the court had to react to an adaptation of the legislation by the union legislator. What was the problem? In the earlier Abdulahi case judgment, the court had interpreted in the Dublin to regulation that is an earlier version of the present state of the law. The court had ruled that an asylum seeker was only entitled to challenge a decision to transfer him to the member state responsible under the Dublin to regulation if he could point to systemic flaws in the asylum procedure and in the conditions for reception of asylum seekers in the member state responsible. And if the systemic flaws provided substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article four of the charter. It's in fact a case law which started with the famous NS case of December 2011 where countries like Ireland, UK, Belgium, they asked themselves can we go on sending back asylum seekers to Greece whereas the Greece asylum system was in full bankruptcy so to speak. It was no longer functioning at all. They didn't have even the means to register them properly let alone to give them what we call in in Dutch bet, bath and bread. But bet and bread that you also understand in Ireland right but bet and bread. So the basic needs so if that cannot be ensured then of course you are no longer fulfilling article four and there we said no of course the member states cannot take on uh take decisions which would somehow endanger uh the compliance with that article which is an absolute fundamental right which cannot be qualified in any way. So in that Abdulahi case interpreting the Dublin three excuse me the Dublin two regulation the court had said that is the only ground for judicial review of the decision to transfer the asylum seeker or the subsidiary protection seeker to that other member state, a member state responsible, that's the ground of appeal. If you don't have that ground then you don't have access even to the court. However in Geiselbach and Caerim that is the two recent cases three years apart Abdulahi was 2013 Geiselbach Caerim 2016 the question was whether this not so old case law but under Dublin two was still valid under Dublin three so you see the legislator had intervened from Dublin two to Dublin three new version of the regulation and a court must of course pay heat to the utmost extent to the statutory provisions reflecting the choices made by a democratic parliamentary process for the European Union the ordinary legislative procedure with a parliamentary majority in the European Parliament and the qualified majority in the council all on a proposal of the commission. So the court looked at the general thrust of these legislative developments which had accompanied the adoption of the Dublin three regulation and on that basis the court decided to drastically widen the possibilities of access to a court. The court held that the Dublin three regulation is intended to make improvements judged necessary by the legislator in the light of the experience gained with the earlier version of the regulation and this not only to improve the effectiveness of the Dublin system itself but also to improve the protection including the judicial protection afforded to the asylum seekers and the subsidiary protection seekers under the Dublin system. Since the EU legislature had when adopting the new Dublin regulation decided to involve asylum seekers in the process whereby the member state responsible is determined they must be considered to have the right to challenge the incorrect application of the criteria listed in that regulation. Now it may seem a little bit technical for you but the impact is enormous if an asylum seeker can only get access to a court let's now say here in Dublin where the asylum seeker has travelled to coming over all sorts of internal borders which are open in the Schengen space and then one way or another they have made it to Ireland and they wanted to have Ireland decide on the asylum application. If the only remedy you can seek is to say I would be sent back to let's now say Hungary which was the member state of first entry because he came over Serbia that's one of these front states then he will not succeed but there may be other criteria which are listed in the Dublin regulation such as where you have family ties or if you are an unaccompanied miner so there are or if you had a visa even an expired one visa visa for a state so there are a whole range of priority criteria and it can make a very big difference for the asylum seeker not just on whether you get or don't get asylum but also where you will be taken care of in the meantime whether that is done in one member state or another member state so the legislator now has elaborated these criteria not only as a device for burden sharing between the member states but also as a set of entitlements for the asylum seekers that they are entitled to get the treatment of their application and also the reception in the meantime in the member state which is designated objectively to that effect in the system so you see the policy choices made by the EU legislator have been accepted by the court they must of course comply with primary EU law and with the charter but once that is the case the court puts them further into effect a last case in this field of asylum and refugee law illustrates this and that is the end case that case concerned the reception directive which less down the minimum standards for the reception of applicants for international protection in the member states under those standards the reception directive lists the circumstances under which an applicant may be detained article eight paragraph three literae states i quote an applicant for international protection may be detained where protection of national security or public order so requires it sounds all a little bit technical but what are we are speaking of is of course extremely sensitive also just reading the newspapers that is that with the streams of these tens of thousands of people there are also terrorists heavy criminals hiding themselves in the streams of people coming in and the flood of people is so massive that the immigration services and the police services are overwhelmed in a way just by the massive numbers and the risk exists that you have excuse me for the picture a few rotten apples in a perfectly honorable stream of people and how are you going to identify them and you need to act preventively because the risk of terrorist attacks taking place is extremely real both in paris and in brosles the savantem attacks there were people who had entered the european union over the summer of 2015 with these streams of big numbers of third state nationals coming in so that is the backdrop of this case nevertheless the court of justice is a constitutional court in such matters it has to balance the legitimate concern of the member states to protect their public order and their national security and the safety of their populations on the one hand yet on the other hand they cannot be without further ado be authorized by using the word war on terrorism to sort of liberate them from all the fundamental rights which are inherent in the fact of being a human being and that is why the court was called upon here on request of the dutch rat van Staten the supreme administrative court of the netherlands to verify whether that provision which is very simple an applicant for international protection may be detained where protection of national security or public order so requires if you read that it's rather shivering in the back because it means it will say well you look a little bit suspect you are wearing the islamic nick up or whatever that i don't like suspect detained national security i exaggerate slightly but it is a single line in its generality if you come to think of it as a lawyer it's outright shocking and frightening but in the context if you go populism if you go with people at large they say yes yes they must do that they can't be severe enough but il y a de jus ja berlau there are judges in berlin you cannot simply go about the vox populi to infringe inalienable rights of the people so the court had to determine whether that provision of the directive was compatible with article six of the charter the right to liberty which is a very basic right and whether it could be limited under article 52 first paragraph of the charter so the court said the fact that the detention of an applicant who is a threat to national security or public order is detained might be an effective means of protecting those of protecting the people it's the people in general and that is court says an acceptable objective in a societal context however the powers of the national authorities deciding such preventive detention court says must be strictly circumscribed by the EU legislator the court said this provision is worded into general wording we are going to interpret it and then it's valid so the court wrote in a way a glossary on the provision boxing in the very strict context within which that national security or public order requirement must be understood and so strictly circumscribed the court said then it is valid that's an interpretation potseus ud valiat so you interpret it so that the provision be valid and of course this boxing in I can't say it otherwise there the court repeated its classical case law that there must be cogent evidence that there is an individual a personal direct and present threat to security so in other words there must have been items of evidence to be verified in advance by a court all of that is not said if you read that directive text it says simply the applicant may be detained where protection of national security and public order so requires so our court says no you need that a judge authorizes the detention after having scrutinized the evidence relating to that person which is a normal way of proceeding in a state governed by the rule of law but you see our court made that glossary on that directive provision and so it was valid the rat van Staten they asked for the evidence of the authorities in the case which had led to the reference in the first place the authorities admitted that they had no evidence and they withdrew their intention to detain so the case was dropped but that's fair enough but you see how this interaction goes a third and last short reflection on the again a wholly different theme the banking crisis the banking crisis which at times seemed to even to threaten in 2008 to 2010 11 the very existence of the common currency the euro now everything is a bit quieted down but in those days it was really a very acute problem here i would simply want to refer to the recent dowling case the dowling case which is an irish case it raised sensitive issues as you know of u law relating to the legality of a measure adopted in the framework of the economic and financial adjustment program concluded between ireland and the european commission in 2010 under that program the financial adjustment program economic and financial adjustment program the EU made financial assistance available to ireland on condition that it restructured and recapitalized its banking sector in the dowling case the irish minister for finance submitted to the shareholders of the holding company that owned the entire share capital of the bank then known as irish life and permanent a proposal designed to achieve the recapitalization of that bank that proposal was rejected by the holding company's general meeting in order to recapitalize the bank nevertheless the minister obtained a direction order from the irish courts requiring the holding company to issue in return for a capital injection of 2.7 billion euros new shares to the minister in his official capacity without any decision to authorize that share issue having been taken by the general meeting of the company certain of the holding company's members and shareholders brought an application before the high court seeking to set aside a direction order arguing that in the absence of shareholder approval the increase in share capital resulting from that order was incompatible with the second company directive of the european union the high court concluded that the holding company would most probably not have been in a position to raise privately the amount of capital required by the commission's financial adjustment program that inability might in turn have led to the failure of irish life and permanent entailing serious consequences for ireland and potentially exacerbating the existing threat to the financial stability of other member states and indeed of the european union as a whole accordingly the high court made a request for a preliminary ruling from the court of justice asking whether the directive in question that is the second company directive precluded the adoption of the direction order in its judgment the court of justice concluded that although there is a clear public interest in guaranteeing strong and consistent protection of shareholders and creditors against acts taken by the governing body of public limited companies the second company directive does not preclude the adoption by the national authorities as opposed to those governing bodies of exceptional measures such as the direction order that are intended to prevent the failure of the company by means of an increase in share capital and are effected without the approval of the shareholders in general meeting the court held that such exceptional measures taken in a situation where there is a serious disturbance of the economy and the financial system of a member state threatening the financial stability of the european union are compatible with the provisions of the second company directive so you see here we made a clear distinction between the national authorities taking a decision in the interest of economic and financial stability as opposed to the governing bodies of the company the company itself taking decisions against the general meeting of the shareholders and that in the circumstances of the case so we said that the second company directive was not covering that situation it's all almost a reasoning prior to religion the company directive did not cover that situation as all the cases that i've just mentioned illustrate a good number of the court of justice's rulings clearly have political implications but that does not mean that our court is an actor on the political stage nor that our rulings may in any sense be regarded as political decisions it is indeed as i try to set out for the EU legislator to make the political choices on behalf of the union's citizens and in accordance with the separation of powers our role as a court is then to interpret and where necessary to verify the validity think about digital rights islands and shremson of the legal instruments that are adopted to implement those choices even in the dowling case it's the validity of the national authorities choices increasingly those instruments EU law instruments have consequences for individual citizens in their private or professional lives which inevitably brings fundamental rights into play that is why although the court of justice is emphatically not a human rights court as such more and more of our judgments deal with issues pertaining to the interpretation and application of fundamental rights primarily of course those enshrined in the EU charter of fundamental rights ladies and gentlemen it is true that we live in an uncertain world but i do hope that from the cases i've just discussed with you there is at least one certainty that may be deduced and that is the certainty that the court of justice is committed to protecting the values on which the european union and the societies of its member states are founded values that form the very essence of the civilization that we have taken centuries to build thank you very much