Security risks of new WEEE Directive?

Yesterday, the European Data Protection Supervisor (EDPS) adopted an opinion on the European Commission's proposal to recast the WEEE Directive (Directive on waste electrical and electronic equipment). This  proposal is currently discussed in the European Parliament and Council. 

According to this press release of the European Commission, the EDPS supports the proposal's objective to improve environmental-friendly policies in the area of e-waste, but does point out that the initiative only focuses on the environmental risks related to the disposal of WEEE and does not take into account the data protection risks that may arise from their inappropriate disposal, reuse or recycling.

According to the EDPS, these risks exist in particular when personal data relating to the users of the devices and/or third parties remain stored in IT and telecommunications equipments (e.g. personal computers, laptops) at the time of disposal.

In view of such risks, the EDPS emphasizes the importance of adopting appropriate security measures at every stage of the processing of personal data, including during the phase of disposal of devices containing personal data. The principle of "privacy by design" or, in this area, "security by design" should also be included in the proposal to ensure that privacy and security safeguards are integrated by default into the design of electrical and electronic equipment.

The EDPS recommends that the legislators:

• integrate privacy and data protection into the design of electrical and electronic equipment "by default" as far as possible, in order to allow users to delete − using simple, free of charge means – personal data that may be present on devices in the event of their disposal.

• prohibit the marketing of used devices which have not previously undergone appropriate security measures, in compliance with state-of-the-art technical standards, in order to erase any personal data they may contain.

Text of opinion (pdf) of the EDPS

Case C‑518/08, Fundación Gala-Salvador Dalí

This reference for a preliminary ruling concerned the interpretation of Arts 6(1) and 8(2) and (3) of the Resale Rights Directive (Directive 2001/84).

The reference had been made in the course of proceedings brought by the Fundación Gala-Salvador Dalí and Visual Entidad de Gestión de Artistas Plásticos (‘VEGAP’), against the Société des auteurs dans les arts graphiques et plastiques (‘ADAGP’), Mr Bonet Domenech, Mrs Bas Dalí, Mrs Domenech Biosca, Mr Domenech Biosca, and Mrs Ana-María Busquets Bonet and Mrs Mónica Busquets Bonet, who were family members of Salvador Dalí, concerning royalties received on sales of works of art by Salvador Dalí.

Salvador Dalí died on 23 January 1989 at Figueras (Spain), leaving five heirs at law. By will dated 20 September 1982, he had appointed the Spanish State as sole legatee, within the meaning of the French law of succession, of his intellectual property rights. Those rights were administered by the Fundación Gala‑Salvador Dalí, a foundation established under Spanish law, created in 1983 at the initiative and under the control of the painter.

In 1997 the Fundación Gala-Salvador Dalí granted to VEGAP, a society under Spanish law, an exclusive worldwide mandate to manage collectively and exercise copyright over the works of Salvador Dalí. VEGAP had, in addition, a contract with its French counterpart, ADAGP, which was responsible for the management of Salvador Dalí’s copyright in France.

Since 1997, ADAGP had collected amounted in respect of the exploitation of Salvador Dalí’s works, which were transferred by VEGAP to the Fundación Gala‑Salvador Dalí, with the exception of those in respect of the resale right. Pursuant to the provisions of Art. L. 123‑7 of the IPC, which reserved the benefit of the resale right to the heirs alone, to the exclusion of legatees and successors in title, ADAGP paid the amount in respect of the resale right directly to Salvador Dalí’s heirs.

Taking the view that, under Salvador Dalí’s would and Spanish law, the royalties levied upon sales at auction of the artist’s works in France should be paid to it, the Fundación Gala-Salvador Dalí and VEGAP summonsed ADAGP before the Paris Regional Court on December 28, 2005 for payment of those royalties, and ADAGP requested that the painter’s heirs be joined so that the judgment to be given would be applicable to them too. This Court decided to ask the Court of Justice whether Art. 6(1) of Directive 2001/84 must be interpreted as precluding a provision of national law, which reserved the benefit of the resale right to the artist’s heirs at law alone, to the exclusion of testamentary legatees.

The Court fist of all held that in interpreting a provision of Community law it was necessary to consider not only its wording but also the context in which it occurred and the objectives pursued by the legislation of which it was part (see Case 292/82 Merck [1983] ; Case C‑223/98 Adidas [1999]; Case C‑17/03 VEMW and Others [2005]; and Case C‑199/08 Eschig [2009]).

The Court held that the wording of Directive 2001/84 gave no guidance in relation to the concept, referred to in Art. 6(1), of “those entitled” under the author of the work. However, according to the Court, Directive 2001/84 was based on two objectives, namely first, to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art and, second, to put an end to the distortions of competition on the market in art, as the payment of a royalty in certain Member States might lead to displacement of sales of works of art into those Member States where the resale right was not applied.

The Court held that the attainment of that first objective was in no way compromised by the transfer of the resale right to certain categories of persons to the exclusion of others after the death of the artist, as the transfer was ancillary to that objective.

Furthermore, the second objective explained the choice of the legal basis on which Directive 2001/84 was adopted, namely Art. 95 EC. That choice confirmed that the adoption of that directive formed part of the harmonisation of the Member States’ laws, regulations and administrative provisions which concerned the establishment and functioning of the internal market.

The Court held that, therefore, there was no need to eliminate differences between national laws which could not be expected to affect the functioning of the internal market and, in order to leave as much scope for national decision as possible, it was sufficient to limit the harmonisation exercise to those domestic provisions that had the most direct impact on the functioning of the internal market.

 It followed that, in the light of the objectives pursued by Directive 2001/84, it was permissible for Member States to make their own legislative choice in determining the categories of persons capable of benefiting from the resale right after the death of the author of a work of art.

The Court however added that it was for the referring court, for the purposes of applying the national provision transposing Art. 6(1) of Directive 2001/84, to take due account of all the relevant rules for the resolution of conflicts of laws relating to the transfer on succession of the resale right.

Text of Judgment

Improvement of EU language rights

A very important vote today by the European Parliaments Civil Liberties Committee. The Committee  backed new measures to guarantee EU citizens access to translation and interpretation in their own language when facing a criminal trial in another Member State. According to this press release, talks will now begin with the Council with the aim of reaching a compromise before the summer. The initiative was put forward by 13 Member States and is the first step in a series of measures designed to lay down common EU standards in criminal law cases.

The press release continues as follows:

"The draft directive aims to set common minimum standards on the right to interpretation and translation in criminal cases throughout the EU. It will improve the rights of suspects who do not understand or speak the language of the proceedings.

A British football fan arrested in Portugal would, under the proposed rules, have the right to interpretation during an inquiry, for example during police questioning, and in order to communicate with lawyers. A defendant should, say MEPs, be able to explain his version of the events to his legal counsel, point out any statements with which he disagrees and make his legal counsel aware of any facts that should be put forward in his defence. All essential documents should also be translated into the defendant's language.

According to the Civil Liberties Committee, a suspect or accused person must have access to interpretation and translation during all phases of criminal proceedings, from the time he is questioned or arrested until all appeals are exhausted. These rights must be guaranteed in criminal proceedings "of every kind", including the pre-trial, sentencing, detention and any appeal phases, until the proceedings are finally concluded.

The assistance given should cover communications between the suspect and his lawyer and essential documents such as the decision depriving him of his liberty, the charge/indictment and key documentary evidence. It must be of a quality sufficient to ensure he is able to understand the case against him and exercise his rights. It should also cover the rules of detention, including how to seek information and make complaints, and official contacts between the detaining authorities and the suspect, say MEPs.

Appropriate assistance should also be provided to individuals suffering from physical or learning disabilities which affect their ability to communicate effectively, such as hearing or speech impediments.

Audio and video recording

When interviews with a suspect have been conducted by police or prosecutors with the aid of an interpreter or when there is a waiver of rights, an audio and a video recording should be made and should be provided to any party in the event of a dispute, adds the committee.

If personal attendance of an interpreter is impossible, such as in an emergency situation or when rarer languages and dialects are involved, technology such as video links, telephone or internet access may be employed as a "last resort", proposes the committee. This option should however not be used for proceedings taking place in court.

Accreditation of translators and interpreters

To guarantee a high standard of interpretation and translation and efficient access to it, the committee wants Member States to put in place a system of training, qualification and accreditation of translators and interpreters for legal work. It also say that a national register of independent professional translators and interpreters who are so qualified must be established and be available, on a cross-border basis, to lawyers and relevant authorities.

Member States must also ensure that training is offered to judges, prosecutors, lawyers, police and relevant court personnel in order for them to be able to assess the suspect's linguistic needs, ensure his ability to understand the proceedings, and assess the quality of interpretation and translation.

Translation and interpretation costs will have to be met by the Member State, not by the suspect. "Any extra costs that the directive will impose on Member States are the irreducible cost of ensuring fair trials and avoiding miscarriages of justice and will in any case be balanced by fewer costly appeals and delays", said rapporteur Sarah Ludford (ALDE, UK).

Rules will apply to European Arrest Warrant cases

The draft law will also apply to European Arrest Warrant cases. Some 11,000 European arrest warrants were issued in 2007, up from 6,900 in 2005. All such warrants will in future be covered by EU standards on the right to interpretation and translation.

This initiative was presented in December 2009 by 13 Member States (Belgium, Germany, Estonia, Spain, France, Italy, Luxembourg, Hungary, Austria, Portugal, Romania, Finland and Sweden). In the meantime, on 9 March, the European Commission decided to table a proposal on the same subject. The report by Sarah Ludford is based on the Member States' initiative.

The UK has notified its wish to participate in the adoption and application of this directive."


In reply, the Commission issued this press release. 

State aid scheme for farmers authorised

The Commission today authorised a temporary UK scheme to grant limited amounts of aid of up to €15,000 to farmers, with a total  budget of approximately £20 million (€22.3 million). The measure is aimed at supporting farmers in UK who encounter difficulties as a result of the current economic crisis. The scheme is open to farmers in all sub-sectors of primary agricultural production, provided they were not already in difficulty on July 1, 2008.

This scheme is a further application of the Commission's Temporary framework for State aid measures to support access to finance in the current financial and economic crisis, which was amended in October 2009 in order to allow Member States to grant limited amounts of aid to primary agricultural producers (see  IP/09/1993).

See this press release for more information.