Publications of Granger, M-P.

The Court of Justice and the Data Retention Directive in Digital Rights Ireland – Telling Off the EU Legislator and Teaching a Lesson in Privacy and Data Protection

In Digital Rights Ireland, the Court of Justice invalidated the 2006 Data Retention Directive, which required private providers to retain for a considerable period electronic communication metadata for law enforcement purposes.In this landmark ruling, the EU judiciary introduced a strict scrutiny test for EU legislative acts that interfere seriously with important rights protected by the Charter of Fundamental Rights and the European Convention on Human Rights—in this case, the rights to privacy and data protection—and applied a rigorous assessment of the proportionality of the measure under the Charter, criticising numerous aspects of the Directive.This article presents and analyses the judgment, discussing its implications for constitutional review and constitutionalism in the European Union, and the substantive and procedural constraints that it imposes on EU and national data retention schemes.It concludes by reflecting on the ruling’s impact on European integration and data related policies.

The Preamble(s) of the French Constitution: content, status, uses and amendment

This article analyses the way of the French Constitutional Council, starting with its famous Association decision in 1971, transformed a brief reference to historical declarations of rights in the thin Preamble of the current French constitution (adopted in 1958) into a wide-ranging judge-made catalogue of fundamental rights. This, combined with two important reforms of the procedure for submissions of statutes to the Constitutional Council for review (in 1974 and 2008), are gradually establishing the Constitutional Council as an important actor in the legislative process and a central body for the protection of human rights in France. The article also briefly explores the scope and limits of this protection. It then discusses recent proposals for amending the Preamble. It analyses the only amendment so far, namely the inclusion of a reference to the Charter for the Environment, which aimed at providing a constitutional basis for the protection of environment, as well as other controversial suggestions, such as those aiming at enabling positive discrimination measures towards minorities, the guarantee of media pluralism, the protection of privacy and personal data and the respect of human dignity. It concludes on the use and misuses of comparative law for constitutional reforms.

States as successful litigants before the European Court of Justice: lessons from the ‘Repeat-Players’ of European litigation

Despite the importance of the role of the European Court of Justice (ECJ) in European integration, its decision-making process is little studied. In particular, the interactions between the political and the legal arena deserve greater attention. Member States’ governments and the ECJ are usually presented as two separate and competing entities, whilst in fact there is a great deal of interaction between these two institutional actors. This article, based on extensive comparative empirical research, uses US sociolegal scholarship on litigation to analyse governments’ litigation in a way which contributes to current theoretical understandings of judicial decision-making, European integration and Europeanization. It identifies, describes, compares and analyses governments’ EU litigation strategies, in order to assess whether and how governments influence European legal developments through litigation. It also stresses the need for governments of the new Member States and candidate countries to understand the importance of adopting a strong and consistent EU litigation strategy, so as to play their part in the development of EU law.