Alternative Judicial Pathways: A compare-and-contrast analysis of ten jurisdictions in the European

Alternative Judicial Pathways: A compare-and-contrast analysis of ten jurisdictions in the European Union

1

Introduction

03

Methodology

05

Section 1: EU Digital Rights Frameworks

07

1.

The General Data Protection Regulation (GDPR) •

The GDPR and the EU Charter of Fundamental Rights

•

Redress under the GDPR

2. The Digital Services Act (DSA) •

The DSA and EU Charter Rights

•

Redress under the DSA

•

Internal complaint-handling system

•

Out-of-court dispute settlement

•

Right to lodge a complaint

3. The Digital Markets Act (DMA) •

The DMA and EU Charter Rights

•

Redress under the DMA

Section 2: Available Judicial Pathways 1.

National Courts

2.

Regulatory Bodies

3.

National Human Rights Institutions (NHRI) and Ombuds Institutions

4.

Alternative Dispute Resolution (ADR)

Table of contents

Section 3: Comparative Analysis 1.

National Courts

2.

Regulatory Bodies

3.

National Human Rights Institutions (NHRI) and Ombuds Institutions

4.

Alternative Dispute Resolution (ADR)

5.

Obstacles and Access to Justice

17

24

Conclusion

44

Credits

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INTRODUCTION Systemic and transformative change happens when those impacted by oppression and rights violations take action in order to challenge the root of their oppression. With this research, digiRISE aims to (co)create and share information, strategies, and best practices designed to facilitate legal action for the protection of the EU Charter of Fundamental Rights (Charter) in the digital sphere through strategic litigation.

Enforcement of the Charter takes place largely before the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). Despite the Charter’s considerable potential for protecting digital rights, and despite the CJEU’s clear willingness to apply Charter rights in the digital sphere, at the national level there remains a tendency to default towards reliance on the less specific rights included in national laws or the European Convention on Human Rights (ECHR).

Alternative judicial pathways

This reluctance results, at least partially, from a lack of knowledge about the judicial pathways that can be utilised for the Charter’s enforcement.

Furthermore, the enforcement of individual rights that may be violated through activities ostensibly regulated by legal instruments with no available judicial remedy will, in many situations, depend on the availability of alternative judicial pathways within national legal systems. Therefore, this report will focus specifically on legal mechanisms and pathways to enforce the Charter at the national level that are rooted in national laws or stem from EU regulations.

With the EU Representative Actions Directive having recently entered into force, collective redress mechanisms are gaining increased traction within EU Member States as judicial pathways to advance fundamental rights protection. However, collective redress mechanisms are outside the scope of this report, which will only focus on individual enforcement pathways.

Given that existing research has shown that the Charter is not currently used to its full potential, and given that awareness of the judicial pathways, institutional mechanisms, and bodies that rightsholders can turn to when their Charter rights are violated is low, the research project on which this report is based has the following objectives: (1) to map available judicial pathways for invoking or enforcing Charter rights in the digital sphere across various EU jurisdictions; and (2) to reveal similarities and divergencies between national systems regarding these pathways, as well as identify any obstacles and access to justice issues that might impact the enforcement of Charter rights at the national level.

In line with these objectives, the digiRISE project commissioned a series of country reports from a group of experts and practitioners within our network in order to map available judicial pathways to enforce Charter rights in select EU Member State jurisdictions (see Methodology section below). This report relies heavily on the findings of these country reports as well as on subsequent research.

03

The first section of the report consists of an overview of the General Data Protection Regulation (GDPR), the Digital Services Act (DSA), and the Digital Markets Act (DMA), which are the three most important EU laws currently in force regulating fundamental rights in the digital sphere.

These regulations are analysed through the lens of the Charter, and the analysis maps out the redress mechanisms and enforcement pathways that can be leveraged at the national level to enforce Charter rights.

The second section will focus on analysing the judicial pathways, institutional mechanisms, and enforcement bodies that stem from these EU regulations. The answers provided in the country reports are grouped into the following four categories: 1) National Courts, 2) Regulatory Bodies, 3) National Human Rights Institutions (NHRI) and Ombuds Institutions, and 4) Alternative Dispute Resolution (ADR). The analysis in this section will include the broader legal frameworks in which these pathways and mechanisms are situated or that they interact with, as well as the opportunities and challenges that they present.

Alternative judicial pathways

Lastly, the third section contains a comparative analysis of the available judicial pathways as well as the obstacles and access to justice issues outlined in the country reports and by our research. With this analysis, we aim to provide a snapshot of what practitioners in our network see as viable judicial pathways to enforce Charter rights in their jurisdictions, how the potential to leverage them may vary or correlate between different legal systems, and what are some of the specific obstacles and crosscutting systemic issues that still need to be addressed in order to advance digital rights and fundamental rights protections in Europe.

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METHODOLOGY This report is the result of a year-long research project which included the creation of a multi-country network of legal experts, litigators, academics, and civil society representatives. This research culminated in a series of ‘Available Judicial Pathways Country Reports’ spanning a selection of Member States, which, along with formal and informal exchanges at digiRISE workshops, informed the mapping and comparative exercises carried out in this report.

This research project ran in parallel to an adjacent project focused on creating another set of country reports analysing collective redress mechanisms as pathways to advance digital rights and enforce Charter rights, as well as mapping out and comparing the current state of implementation of the EU Representative Actions Directive. The same network of experts was engaged to develop both research projects and sets of country reports.

The selection of countries for analysis was based on criteria of representativeness, historical specificities in the selected countries’ legal traditions, as well as the breadth of the perceived and projected impact of Charter rights enforcement in these jurisdictions. We designed our method based on the assumption that comparing legal systems which are both similar and diverse in nature may prove useful to leverage the Charter’s potential and inform digital rights litigation strategies.

Alternative judicial pathways

For these reasons, and to cater to this report’s objectives, we chose to examine the following countries: 1) Germany, 2) France, 3) Belgium, 4) The Netherlands, 5) Italy, 6) Greece, 7) Croatia, 8) Spain, 9) Portugal, and 10) Ireland.

While not complete in terms of representing the totality of the Member States, we selected these countries because they cover a wide range of territorial and linguistic diversity across the EU (for example, we selected countries from Northern and Southern Europe, as well as from the Balkans, spanning nine EU languages). We also included both civil law and common law systems (see Germany and Ireland as examples), along with jurisdictions with varying legal traditions around the composition of court systems and the functions performed by both judicial and non-judicial bodies.

The questionnaire we shared with our network for the development of the Available Judicial Pathways Country Reports was purposefully attached to the questionnaire we circulated for our parallel research project on collective redress mechanisms. This was designed to prompt the network of experts to broaden their analysis of the scope of available or potential Charter rights enforcement pathways beyond the collective redress mechanisms they were analysing and so reveal other potential pathways to justice.

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The attached questionnaire was prefaced by the following text and contained the following two questions: The objective of this section of the questionnaire is to reveal different attitudes and tendencies in different jurisdictions on which tools are missing to make the EU Charter more efficient. We focus on a procedural perspective, and we want to understand what avenues are being used or can be used instead of collective redress. We understand that the protection of digital rights as fundamental rights has predominantly taken place on a CJEU level, with the efficient use of Article 267 TFEU. However, we are aware that there are other avenues for using the EU Charter in national jurisdictions, such as administrative courts, independent authorities, and out-of-court processes, to name a few.

Question 1. Please describe any alternative judicial pathways to using/ invoking the EU Charter in your jurisdiction.

Question 2. What are the most common obstacles in getting a ruling using the EU Charter on a national level in your jurisdiction?

Alternative judicial pathways

While the introductory text mentions a few pathways as guiding examples, the questions were intentionally formulated in an open-ended manner to allow for the necessary jurisdiction-specific versatility and for a more comprehensive mapping of potential enforcement pathways than a more prescriptive formulation could have provided. It also allowed us to gauge the level of awareness and use of enforcement pathways to leverage the Charter among the practitioners, as well as more broadly within their jurisdictions.

This choice also entailed a higher degree of variability as to how the questions could be interpreted, and which pathway(s) or obstacle(s) each country report might focus more on. In practice, we accepted the risk that this variation might bring and made sure to incorporate the variability in our analysis, as well as in our research project itself. For example, during our digiRISE Feedback and Consultation Workshop, we provided an intentional space to allow the network of experts to compare, discuss, and expand on the preliminary findings in the first drafts of the country reports; these discussions, in turn, helped to inform the complementary research and comparative analysis carried out in this report.

Lastly, the research required a methodology that could integrate the necessary amount of flexibility to allow for comparative legal research on a body of laws and legal practice that may be novel or are in flux. The objective in applying a comparative law methodology was to create common knowledge around potential Charter enforcement pathways among various EU Member States, which can in turn serve as a valuable tool for access to justice in the digital space and the protection of fundamental rights more broadly.

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SECTION 1.

Alternative judicial pathways

EU Digital Rights Frameworks

07 07

1.

The General Data Protection The GDPR, recognised as a landmark rights-based EU Regulation, is a legal framework that adopts a human rights-based approach designed to protect the personal data and privacy of individuals within the EU and the European Economic Area (EEA). It imposes obligations on anyone handling personal data and includes provisions that reinforce transparency and accountability by establishing data subject rights, data processing rules, security measures, and enforcement mechanisms.

The GDPR and the EU Charter of Fundamental Rights From the outset, Recital 1 of the GDPR recognises the fundamental right to data protection as enshrined in Article 8(1) of the Charter. However, the GDPR goes beyond the mere recognition of the fundamental right to data protection and further develops the expansive conception of this fundamental right as outlined by the Charter.1 Article 1 of the GDPR goes further than the first recital and establishes that the Regulation aims to ensure not only the right to personal data protection, but also the protection of other rights and freedoms.2

S1. EU Digital Rights Frameworks

Furthermore, the GDPR contains a set of substantive actionable rights which includes the right of access, the right to rectification, the right to erasure, the right to restrict processing, the right to data portability, the right to object, and the right not to be subject to a decision based solely on automated processing, including profiling. These rights are outlined in Articles 15 to 22.

Some provisions in the GDPR specifically outline how the data protection rules contained in it reinforce other fundamental rights contained in the Charter. A notable example is the additional protection for special categories of personal data established by Article 9. This extra level of protection correlates with various Charter rights, including the right to non-discrimination under Article 21 and the right of collective bargaining and action under Article 28, among others.

For example, Article 8(2) of the Charter expands the right to data protection by establishing that personal data must be processed not only legally and fairly, which correlates to the data processing principle under Article 5(1)(a) of the GDPR, but also on the basis of consent or any other legal basis laid down by law, in accordance with Article 6 of the GDPR. Moreover, Article 8(2) of the Charter establishes the right of access to data and the right to rectification as integral components of the fundamental right to data protection, which in turn are codified by the GDPR in Articles 15 and 16 respectively. Lastly, according to Article 8(3) of the Charter, compliance with the rules set out above shall be subject to control by an independent authority, which corresponds to the independent supervisory authorities regulated by Articles 51 to 62 of the GDPR.

1

Recital 4 goes into further detail and explicitly recognises that the GDPR observes the freedoms and principles recognised in the Charter. Besides the right to data protection under Article 8, the Charter also mentions respect for private and family life, home and communications under Article 7; freedom of thought, conscience and religion under Article 10; freedom of expression and information under Article 11; freedom to conduct a business under Article 16; the right to an effective remedy and to a fair trial under Article 47; and cultural, religious and linguistic diversity under Article 22.

2

08

We can find another example in the exception on data processing restrictions for journalistic, academic, artistic, or literary purposes established in Article 85, which reconcile data protection with the right to freedom of expression and information under Article 11 of the Charter.

Additionally, provisions such as Article 88 establish that Member States can provide, either by law or by collective agreements, more specific rules to ensure fundamental rights protections in the processing of employees' personal data in the context of employment, which corresponds to the right of collective bargaining and action under Article 28 of the Charter.

Beyond the provisions in the GDPR, scholars have also recognised this interplay between the GDPR and other fundamental rights and consider the right to data protection as an enabler of other fundamental rights or as a precondition to exercise them.3 With the exponential increase in data processing activities and capabilities, and concomitantly the increase and diversification of risks related to it, this interplay between the right to data protection and the protection of other fundamental rights has also been explained through the notion of ‘multi-functionality’. This can be illustrated, for example, by examining how the right to data protection can serve as a tool to counter the effects of online harassment and its impact on human dignity, integrity, and freedom of expression under Articles 1, 3, and 11 of the Charter respectively, or by examining automated decision-making and its impact on non-discrimination under Article 21 of the Charter.4

S1. EU Digital Rights Frameworks

Redress under the GDPR Thanks to its rights-based approach, the GDPR contains clear, precise, and unconditional enforceable rights which offer multiple pathways for the enforcement of Charter rights. Under Article 77, individuals have the right to lodge complaints before their national data protection authority (DPA) if their data protection rights have been violated. This is complemented

by Article 78, which establishes the right to an effective judicial remedy to challenge decisions by DPAs, which is a clear reaffirmation of the right to an effective remedy and a fair trial under Article 47 of the Charter.

Furthermore, Article 79 reaffirms the Charter right to an effective remedy and to a fair trial by giving data subjects the right to bring legal action before national courts against data controllers or processors if their rights under the GDPR are infringed. The precise procedural rules surrounding the exercise this right must be provided by Member States’ national law, in line with the EU principles of equivalence and effectiveness.

Lastly, Article 82(1) establishes a right for any person to receive compensation for any material or non-material damage resulting from an infringement of the GDPR. However, a claim for damages requires that actual harm have occurred. This has been confirmed by CJEU case law,5 ‘Article 1 Commentary’ (GDPR Hub, last edited 14 March 2024) <https://gdprhub.eu/Article_1_ GDPR> accessed 3 October 2024.

3

Florence D’Ath, ‘The General Data Protection Regulation: A Multi-Functional Framework for the Defence of the Rights and Freedoms of Data Subjects in the Digital Sphere’ (Dissertation to obtain the degree of Doctor in Law, University of Luxembourg/Maastricht University 2023) <https://orbilu.uni. lu/bitstream/10993/60043/1/Thesis%20DATH%20Florence.pdf> accessed 3 October 2024.

4

5

Case C‑300/21, Österreichische Post AG [2023] ECLI:EU:C:2023:370.

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which has emphasised that, to be compensable, the ‘damage’ must be distinct from the mere infringement itself. Therefore, a breach of the GDPR alone does not automatically give rise to damages under Article 82(1).

Despite all the potential that these enforceable rights have on paper, in practice it has been well-documented6 and is widely known that the enforcement of the GDPR has been underwhelming. Enforcement has been plagued by ongoing issues such as DPA inertia7 and a lack of harmonisation across procedural rules, to name a few. On this last issue, the draft GDPR procedural regulation is now headed to the trilogues, and there are indications that the Council and Parliament's amendments might include promising developments. This follows an initial proposal by the Commission that was received with caution by practitioners in the field.8

2.

The Digital Services Act (DSA) The DSA is a novel regulatory framework aimed at increasing platforms' accountability in the digital space and creating a safer and more transparent online environment across the EU. Its provisions set out transparency and procedural obligations requiring online platforms and intermediary services to tackle illegal content and protect users' rights.

S1. EU Digital Rights Frameworks

The DSA and EU Charter Rights Many of the DSA's provisions and recitals refer to the Charter and to a host of fundamental rights contained within it. For example, Recital 153 establishes that, in general, the DSA should be interpreted and applied in accordance with the Charter. Furthermore, Article 1 stipulates that the DSA's overarching aim is to set out harmonised rules for a safe, predictable, and trusted online environment in which Charter rights are effectively protected, and Article 14 imposes an obligation on platforms to apply and enforce their terms and conditions with due regard to users' fundamental rights as enshrined in the Charter.9

‘Data Protection Day: Are Europeans really protected?’ (NOYB, 27 January 2023) <https://noyb.eu/ en/data-protection-day-are-europeans-really-protected> accessed 3 October 2024.

6

Irish Council for Civil Liberties, ‘Europe’s enforcement paralysis: ICCL’s 2021 report on the enforcement capacity of data protection authorities’ (2021) <https://www.iccl.ie/digital-data/2021-gdpr-report/> accessed 3 October 2024.

7

8 ‘Analysis: GDPR Procedural Regulation enters critical phase’ (NOYB, 16 July 2024) <https://noyb.eu/ en/analysis-gdpr-procedural-regulation-enters-critical-phase> accessed 3 October 2024.

9 A wider range of Charter rights are explicitly mentioned throughout the DSA, including a comprehensive (though not exhaustive) list in the provisions addressing the categories of systemic risks that should be assessed by VLOPs and VLOSEs. Both Recital 81 and Article 34 refer to the potential impact of these services on the exercise of fundamental rights. This includes, but is not limited to, the rights to human dignity as outlined in Article 1 of the Charter, respect for private and family life in Article 7, protection of personal data in Article 8, freedom of expression and information—including media freedom and pluralism—in Article 11, non-discrimination in Article 21, respect for the rights of the child in Article 24, and a high level of consumer protection in Article 38.

010

Redress under the DSA While the DSA provides multiple procedural obligations and redress avenues to address issues related to users' Charter rights online, it does not explicitly create a separate private right of action or confer specific enforceable substantive rights on individuals.

From an access to justice perspective, it has been noted that the DSA's ‘procedure before substance’ approach leaves many open questions, particularly as to how effective its redress pathways and procedural innovations can be if it does not put forth substantive rules on the scope of freedom of expression and other fundamental rights in the online context.10 However, the DSA does provide a multi-layered framework of redress mechanisms, and due to it being an EU Regulation with direct applicability among Member States, it does not preclude existing judicial remedies under national laws (as is explicitly recognised under certain DSA provisions as well).11

S1. EU Digital Rights Frameworks

It is worth noting that prior to the entry in force of the DSA there were already examples of courts handling claims challenging content moderation decisions. For example, a recent landmark decision by a Polish court confirmed that platforms cannot block users at will and that banned users have the right to sue in their own country.12 Furthermore, in the Netherlands and Germany, tort law has been applied alongside fundamental rights protection in cases related to content moderation.13 However, the success of these type of judicial challenges remains limited.14 Article 6 of the DSA established that service providers will only not be liable if they are unaware of illegal activity or content on their platform15 and if they promptly remove or disable access to the illegal content on becoming aware of it. Article 16 of the DSA provides a ‘notice and action mechanism’ whereby individuals or entities can notify platforms of illegal content, engaging the platform’s liability under Article 6 (as long as the illegality of the content is evident enough that it does not require a detailed legal examination), as well as engaging the specific redress mechanisms laid out below.

10 Pietro Ortolani, ‘If You Build It, They Will Come. The DSA’s “Procedure Before Substance” Approach’ (Verfassungblog, 7 November 2022) <https://verfassungsblog.de/dsa-build-it/> accessed 3 October 2024

For example, Article 9 of the DSA establishes that when a national judicial or administrative authority orders a platform to act against illegal content on its site, the order must contain the legal basis under EU or national law as well as available redress options. Furthermore, Article 21 also explicitly recognises users’ right to challenge the platforms’ content moderation decisions via national courts, which is reinforced by the aforementioned Recital 39 and its obligation on Member States to uphold users’ right to an effective judicial remedy.

11

Dorota Glowacka and Anna Obem, ‘Win against Facebook. Giant not allowed to censor content at will’ (Panoptykon Foundation, 14 March 2024) <https://en.panoptykon.org/win-against-facebookgiant-not-allowed-censor-content-will> accessed 3 October 2024.

12

13 C/13/687385 / KG ZA 20-650 CdK/BB, 9 September 2020, Amsterdam District Court, <https:// uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBAMS:2020:4435> accessed 3 October 2024; Case III ZR 179/20, 29 July 2021, The Federal Court of Justice of Germany <https://juris.bundesgerichtshof. de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=121741&pos=0&anz=1> accessed 3 October 2024.

Bengi Zeybek, Joris van Hoboken and Ilaria Buri, ‘Redressing Infringements of Individuals’ Rights Under the Digital Services Act’ (DSA Observatory Analysis, 4 May 2022) <https://dsa-observatory. eu/2022/05/04/redressing-infringements-of-individuals-rights-under-the-digital-services-act/> accessed 3 October 2024.

14

15

As was the case with the previous regime.

11

Internal complaint-handling system One of the key mechanisms introduced by Article 20 of the DSA is the requirement for platforms to establish internal complaint-handling systems. These systems must allow for complaints to be lodged against decisions related to the removal or disabling of access to illegal content or content that breaches their terms of service, as well as the suspension or termination of user accounts and services. This mechanism must be easily accessible online, user-friendly, and free of charge.

As previously mentioned, Article 14 establishes that platforms must implement and enforce service restrictions as outlined in their terms and conditions with due regard to users' Charter rights. However, it has been suggested16 that the legitimacy of platforms' content moderation procedures, and their increasing role as private adjudicators, can be enhanced not only through regulation such as the DSA, but also by ‘judicializing’ themselves and providing those affected by their decisions with procedural rights and applying fundamental rights frameworks in their decision-making process.

Out-of-court dispute settlement

S1. EU Digital Rights Frameworks

Article 21 DSA entitles users who have submitted notices to challenge content moderation decisions by platforms to use any of the out-of-court dispute settlement bodies certified by Member States' Digital Services Coordinators (DSCs).17 This also applies to decisions that are the outcome of the internal complaint process under Article 20.

Although the DSA establishes that platforms must engage with the procedure in good faith, these out-of-court settlements are not legally binding. Despite this, out-of-court dispute settlement is still a viable option for users to seek redress for Charter rights violations due to its lower costs and expediency in comparison to court procedures. Furthermore, analysts have pointed out that the obligation that Article 24 imposes on platforms to disclose how often they comply with these outcomes, and the fact that adhering to them may be part of Very Large Online Platforms (VLOPs) risk mitigation measures under Article 35, makes it less probable that platforms will systematically disregard out-of-court settlements.18

16 Catalina Goanta and Pietro Ortolani, ‘Unpacking Content Moderation: The Rise of Social Media Platforms as Online Civil Courts’ (SSRN, 22 November 2021) <https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3969360> accessed 3 October 2024

This provision also imposes an obligation on platforms to ensure that information regarding access to these mechanisms must be clear, user-friendly, and easily accessible on their site. Additionally, it sets out a series of criteria that the certified bodies must meet. Among these, it requires that they be impartial and independent, that they have the necessary expertise related to the contested issue, and that they can settle the disputes swiftly, efficiently, and cost-effectively with clear and fair procedural rules that are easily and publicly accessible.

17

Ortolani (n 10); See also Joan Barata, ‘The Out-of-court Settlement Mechanism under the DSA: Questions and Doubts’ (DSA Observatory Analysis, 26 October 2023) <https://dsa-observatory. eu/2023/10/26/the-out-of-court-settlement-mechanism-under-the-dsa-questions-and-doubts/> accessed 3 October 2024.

18

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Article 21 establishes that users are also entitled to initiate proceedings to challenge the platform's content moderation decisions before a national court at any stage, regardless of their engagement with out-of-court dispute settlement mechanisms.

Right to lodge a complaint Article 53 of the DSA entitles users to lodge complaints with DSCs, which are the national regulatory bodies tasked with overseeing the application of the DSA and ensuring compliance by platforms.

Recital 109 states that to ensure proper oversight and enforcement of the DSA, Member States must appoint at least one authority19 to supervise its application, but they may designate multiple authorities for specific sectors. Experts have pointed out that the selection of specific authorities and the scope of their expertise may significantly impact access to justice for all.20

S1. EU Digital Rights Frameworks

As previously mentioned, the DSA does not explicitly create a private right of action or enforceable substantive rights. Therefore, administrative complaints under Article 53 will probably relate to either procedural rules or to other due diligence obligations contained in the Regulation. However, it has been pointed out that these types of claims could arguably be linked to violations of individuals' fundamental rights.21 Another hypothesis is that Article 53, especially in combination with the obligation on platforms in Article 14 to apply and enforce their terms and conditions with due regard to users' fundamental rights as enshrined in the Charter, could be constructed as a separate private right of action before DSCs allowing users to seek redress for violations of their fundamental rights online. However, given the absence of detailed guidance on Article 53 and its interaction with other DSA provisions, and the current lack of precedent on how DSCs will interpret and act upon their competence and powers under the DSA, it remains uncertain whether such complaints would be successful.22 Additionally, Article 54 establishes a right for users to seek compensation from providers for any harm or loss they incur as a result of the provider’s failure to comply with their obligations under the DSA, in accordance with EU and national laws. As set out in Recital 121, compensation should not only align with the applicable national law's rules and procedures, but it should also apply without precluding other avenues for redress available under consumer protection regulations.

19 See here for a list of the DSCs in each Member State: https://digital-strategy.ec.europa.eu/en/policies/dsa-dscs (accessed 3 October 2024).

20

Ortolani (n 10).

For instance, when a statement of reasons for content removal or information regarding the appeal mechanisms for a decision is not provided, it might be possible to make the case that this failure constitutes an unjustified infringement on an individual’s freedom of expression and potentially serve as the basis for a separate cause of action. See Zeybek and others (n 14).

21

22

Zeybek and others (n 14).

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Furthermore, Article 86 entitles users to authorise a non-profit organisation or association to exercise their rights under the DSA. This is of particular importance under the DSA, since complaints submitted on users' behalf by 'trusted flaggers' under Article 22 of the DSA could significantly benefit the protection of users’ freedom of expression and information, especially since platforms should handle these complaints expeditiously in recognition of the organisations' expertise.

Insofar as 'trusted flaggers' exercise rights on users' behalf, the privileges they are awarded under the DSA could indeed have a positive impact on fundamental rights protections. However, the fact that the DSA allows law enforcement agencies, including Europol, as well as profit-seeking industry organisations to apply for this status raises wider concerns around the ‘trusted flagger’ figure itself and how it might facilitate enforcement overreach.23 Moreover, in the context of Member States with more repressive regimes, the weaponisation of 'trusted flaggers' could also pose a serious threat to fundamental rights, especially when it comes to marginalised groups.

In conclusion, it can be said that the DSA offers a promising multi-level approach to enforcing Charter rights, encompassing both platform-based and external mechanisms to safeguard users' rights. However, research reveals a significant mismatch between existing pathways and effective access to justice for those affected by harmful online content.24 This raises considerable concerns around digital due process in this context.

S1. EU Digital Rights Frameworks

3.

The Digital Markets Act (DMA) The DMA introduces a comprehensive set of ex-ante rules aimed at ensuring fair competition in the digital economy, particularly by targeting large digital platforms designated as ‘gatekeepers’. These platforms, which often control entire ecosystems, can restrict consumer choice and infringe on users' rights. To address this, the DMA details specific obligations and prohibitions designed to enhance contestability and fairness, especially for business users and smaller companies dependent on these platforms.

Unlike traditional competition law, which is applied ex post, the DMA operates ex ante. However, it is deeply rooted in competition law principles and is often seen as a complementary counterpart25 to traditional competition law and as functioning as its ex-ante version.26

23 Konstantinos Komakis, Katiza Rodriguez, and Christoph Schmon, ‘ Enforcement Overreach Could Turn Out To Be A Real Problem in the EU’s Digital Services Act’ (Electronic Frontier Foundation, 18 February 2022) <https://www.eff.org/deeplinks/2022/02/enforcement-overreach-could-turn-outbe-real-problem-eus-digital-services-act> accessed 3 October 2024.

24 Anna van Duin, Naomi Appelman, Brahim Zarouali , and Max Kosian, ‘Harmful Content and Access to Justice on Online Platforms: An Empirical Study on the Experiences and Needs of Victims’ (2023) Amsterdam Law School Research Paper No. 2023-19 <https://ssrn.com/abstract=4456769> accessed 3 October 2024

Viktoria Robertson, ‘The complementary nature of the Digital Markets Act and the EU antitrust rules’ (2024) 12(4) Journal of Antitrust Enforcement 325.

25

26 Assimakis Komninos, ‘Private Enforcement of the DMA Rules before the National Courts’ (SSRN, 5 April 2024) <https://ssrn.com/abstract=4791499> accessed 3 October 2024.

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The DMA and EU Charter Rights The DMA focuses primarily on market fairness, and, therefore, its provisions with explicit references to fundamental rights focus more on business users than end-users and tend to lack a consumer-based approach. For example, the right to consumer protection under Article 38 of the Charter is completely absent from the text of the DMA. This approach situates the DMA within ongoing debates which question the way EU law protects the fundamental rights of companies to conduct business, and which discuss the risk of dehumanisation of fundamental rights through their appropriation to advance a specific market ideology.27 Moreover, it has been argued that an updated and modernised definition of ‘consumer’ is crucial to ensuring that EU legislation keeps pace with ongoing digitalisation.28 However, by opting for the term ‘end user’, the DMA failed to take the opportunity to update the definition of consumer. In so doing, it missed the opportunity to provide a higher level of consumer protection by recognising the evolving roles consumers play (e.g. as ‘prosumers’) and address the challenges they face as a result of digital asymmetries and network effects.29

S1. EU Digital Rights Frameworks

It has been recognised that the obligations placed on large online platforms by the DMA can contribute to an increased level of consumer protection and enforcement of users' fundamental rights through the prevention of monopolistic practices, increased transparency, enhanced user choice through interoperability, and more robust data protection building on existing rules under the GDPR.30

Redress under the DMA The enforcement of the DMA is mainly carried out by the EU Commission.

Although the DMA does not explicitly create a separate private right of action, or confer specific enforceable substantive rights to individuals, national courts are competent to enforce its provisions because it is an EU Regulation with direct applicability in Member States. Furthermore, the possibility of private enforcement is explicitly recognised within several DMA provisions. For example, Recital 42 not only refers to the

27 Eduardo Gill-Pedro, ‘Whose Freedom is it Anyway? The Fundamental Rights of Companies in EU Law’ (2022) 18(2) European Constitutional Law Review 183.

28 Vannessa Mak, ‘A Primavera for European consumer law: re-birth of the consumer image in the light of digitalisation and sustainability’ (2022) 11(3) Journal Of European Consumer And Market Law 77.

Anna Moskal, ‘Digital Markets Act (DMA): A Consumer Protection Perspective’ (2022) 7(3) European Papers 1113.

29

30 ‘How will the Digital Markets Act affect human rights? Four likely impacts’ (Global Partners Digital, 5 July 2022) <https://www.gp-digital.org/how-will-the-digital-markets-act-affect-human-rights-fourlikely-impacts/> accessed 3 October 2024. See also ‘The Digital Markets Act promises to free people from digital walled gardens’ (EDRi, 25 March 2022) <https://edri.org/our-work/the-digital-marketsact-promises-to-free-people-from-digital-walled-gardens/> accessed 4 October 2024.

15

possibility of bringing non-compliance cases before national courts, but also mentions complaints-handling mechanisms and alternative dispute resolution mechanisms. Additionally, Article 39 of the DMA establishes a regime of cooperation between national courts and the Commission.31 However, only a subset of DMA provisions meet the criteria of being sufficiently clear, precise, and unconditional as to be directly applicable and thereby create a pathway to private enforcement through national courts.32 The provisions that do meet these criteria are mainly Articles 5, 6, and 7, which impose obligations on designated ‘gatekeepers’ to prevent unfair practices. These could be instrumental in enforcing Charter rights, in particular the right to data protection and a high level of consumer protection.33 Unlike the DSA, the DMA does not contain a specific provision on compensation for damages caused by infringement of the rules it sets out.

Furthermore, no DMA-specific harmonisation act exists for damage claims along the lines of those established in competition law by the EU Antitrust Damage Directive. However, as has been noted by multiple scholars, both EU law and CJEU case law foresee the possibility of bringing damage claims under the DMA despite the lack of a specific provisions in its text.34 Notably, a pathway for compensation claims under the DMA has recently been enacted in Germany. The 11th Amendment to the Act against Restraints of Competition has made infringements of Articles 5 to 7 of the DMA subject to claims for both injunctions and damages.35

S1. EU Digital Rights Frameworks

In conclusion, the DMA not only seeks to level the playing field in digital markets, but also to be a tool for protecting the fundamental rights of end users. However, despite its dual focus on market fairness and rights protections, it is still an open question if it will end up serving as an effective pathway to enforce a wider range of Charter rights for end-users, or if it's enforcement will be limited to business users and their freedom to conduct a business under Article 16 of the Charter.

Courts can request information or opinions from the Commission, which in turn can also request documents from courts to prepare their observations. Furthermore, courts must forward the Commission copies of relevant judgments and avoid decisions which contradict the Commission’s decisions. Courts can also decide to either stay their proceedings or to request a preliminary ruling from the CJEU.

31

32 Miguel del Moral Sánchez, ‘The Devil is in the Procedure: Private Enforcement in the DMA and the DSA’ (2024) 9(1) University of Bologna Law Review 7.

33 Article 5 explicitly acknowledges the possibility of raising issues of non-compliance before national courts and lists a series of ‘do’s and don’ts’ requiring gatekeepers to allow business users access to data and prohibiting self-preferencing practices, prohibiting gatekeepers from processing personal data without consent, from combining data across services, or from cross-using personal data. Article 6 imposes further obligations on gatekeepers, such as enabling data portability, allowing easy uninstallation of apps, and ensuring fair ranking and interoperability with third-party services. And lastly, Article 7 focuses on interoperability for number-independent interpersonal communication services, ensuring that gatekeepers make basic functionalities like messaging and calls interoperable with other providers’ services.

See Giulia Rurali and Martin Seegers, ‘Private Enforcement of the EU Digital Markets Act: The way ahead after going live’ (Cartel Damage Claims, 20 June 2023) <https://carteldamageclaims. com/2023/06/19/private-enforcement-of-the-eu-digital-markets-act-the-way-ahead-after-goinglive/> accessed 3 October 2024. See also Komninos (n 26).

34

35

Draft 11th amendment of the GWB (BMWK, 20 September 2022)

16

SECTION 2.

Available Judicial Pathways

Alternative judicial pathways

This section will focus on analysing the judicial pathways, institutional mechanisms, and enforcement bodies that stem from the EU digital rights frameworks and that are described in the answers provided in the country reports. This analysis will include the broader legal frameworks in which the pathways, mechanisms, and bodies are situated or with which they interact, as well as the opportunities and challenges they present.

The pathways mapped have been categorised as follows: 1) National Courts, 2) Regulatory Bodies, 3) National Human Rights Institutions and Ombuds Institutions, and 4) Alternative Dispute Resolution.

17 17

1.

National Courts The Charter and all EU regulations are binding in their entirety and are directly applicable in all Member States pursuant to Article 288 of the TFEU. This means they can create individual rights that national courts must protect without the need for further implementing provisions.

As we have seen in the previous chapter, the GDPR, the DSA, and the DMA contain judicial pathways to enforce or invoke Charter rights through national courts, although they vary substantially in terms of how well established the private rights of action they create are and how clear and precise the substantive enforceable rights within their provisions are.

EU laws in general, including the Charter, are designed to function within a decentralised judicial system, where national courts are the primary enforcers of EU law. As enshrined in Article 51(1) of the Charter, national courts play a key role in the enforcement of the Charter when acting within the scope of EU law, and they are responsible for ensuring that national laws and decisions comply with the fundamental rights contained within the Charter.

S2. Available Judicial Pathways

Before national courts, both the parties and the judges have the ability to refer to the Charter. Parties may bring it up on their own or judges may choose to refer to it independently. The ability to invoke the Charter, and the specific stage at which it can be introduced, is determined by the procedural rules in effect. According to the latest report from the EU Agency for Fundamental Rights, while national courts have been increasingly referring to the Charter, the frequency of such references continues to vary.36 When disputes arise over the compatibility of national law with EU law and the Charter, they are typically resolved by the national court with jurisdiction over the matter (be it the Constitutional Court or the ordinary courts), following their own procedural rules.37 When national courts resolve conflicts between national law and EU law, they use various interpretative and procedural techniques. These include the preliminary reference procedure before the CJEU under Article 267 of the TFEU, consistent interpretation, disapplication of conflicting national laws, comparative reasoning, and proportionality testing.

In general, any national court potentially has the ability to refer questions of EU law, including issues concerning the Charter, to the CJEU through the preliminary ruling procedure under Article 267 of the TFEU.

36 European Union Agency for Fundamental Rights, ‘Fundamental Rights Report – 2024’ (2024) <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2024-fundamental-rights-report-2024_ en.pdf> accessed 3 October 2024.

According to the report, Franet provided the numbers of judicial (not only high court) decisions referring to the Charter, as follows: Bulgaria (1,537), the Netherlands (1,079), Romania (353), Luxembourg (202), Portugal (154), Slovakia (126), Hungary (103), Slovenia (102), Denmark (99), Cyprus (91), Czechia (73), Poland (73), Austria (64), Ireland (51), Latvia (38), Lithuania (29), Belgium (27), and Italy (21). References were also found in Croatia (18), Finland (18), Sweden (15), and Estonia (3).

37 Civil Liberties Union for Europe, ‘Relying on the EU Charter of Fundamental Rights for Human Rights Litigation: A Handbook for Civil Society Organisations and Rights Defenders’ (2023) <https:// dq4n3btxmr8c9.cloudfront.net/files/swj7jv/Charter_Handbook_may2023_v4.pdf> accessed 3 October 2024.

18

This allows courts to seek clarification on how to interpret and apply the Charter in specific cases, ensuring consistent and harmonised protection of fundamental rights across the EU. While the CJEU has the final say in interpreting the Charter, national courts act as the primary enforcers of these rights, bridging the gap between national legal systems and EU law.

Since the landmark Van Gend en Loos case,38 national courts have consistently engaged with the CJEU in their efforts to determine which provisions of EU law are directly effective and the implications of that direct effect in specific cases. For an EU law to be directly effective, it must be clear, precise, and unconditional.39 The interpretation and scope of these criteria have evolved over time, with recent cases further clarifying their meaning, particularly the requirement of unconditionality.40 The doctrine of consistent interpretation requires national courts to interpret domestic laws in a way that aligns with EU regulations. This ensures that national legislation supports the effective implementation of EU law. However, when consistent interpretation is not possible and a direct conflict with EU law occurs, national judges are obliged to disapply the conflicting national law, provided the EU law in question is clear and precise enough to have direct effect.41 Another valuable method employed by national judges is comparative reasoning. This approach involves examining legal decisions from foreign jurisdictions that have faced similar issues and adapting those solutions to fit within the national legal framework. By incorporating legal arguments grounded in the Charter and its interpretation by the CJEU, national courts can address disputes that may not be directly covered by the Charter but still require alignment with EU legal principles.

S2. Available Judicial Pathways

Lastly, the proportionality test is a critical tool for national judges when evaluating whether domestic measures that interfere with EU law are justified. Proportionality evaluation typically involves three or four steps.42 The proportionality test is a general principle of EU law and is often applied by both national courts and the CJEU. Different courts may emphasise or prioritise certain steps depending on the context.43

Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] EU:C:1963:1.

38

Michal Bobek, ‘Institutional Report: National Courts and the Enforcement of EU Law’ in M Botman and J Rijpma (eds), National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order (The XXIX FIDE Congress Publications, Vol 1, Eleven International Publishing 2020) <https://ssrn.com/abstract=3726870> accessed 3 October 2024.

39

See for example judgments: C-157/02, Rieser Internationale Transporte [2004] EU:C:2004:76, para.

40; Joined Cases C-165/09 and C-167/09, Stichting Natuur en Milieu e.a [2011] EU:C:2011:348, paras.

97 and 98; C-176/12, Association de médiation sociale [2014] EU:C:2014:2, paras. 33 to 36; Joined Cases C-108/14 and C-109/14, Larentia + Minerva v Marenave Schiffahrts [2015] EU:C:2015:496, paras.

50 to 52; and C-592/15, British Film Institute [2017] EU:C:2017:117, paras. 14 to 24.

40

41

Civil Liberties Union for Europe (n 37).

The first step, which is sometimes overlooked, is assessing the legitimacy of the objective being pursued. The next two steps focus on the suitability and necessity of the means used to achieve that objective—ensuring that the goal can be reached and that no better alternatives exist. The final step is proportionality in the narrow sense (stricto sensu), which involves determining whether the burden imposed by the chosen means is excessive in relation to the objective.

42

43 Pekka Savola, ‘Proportionality in Fundamental Rights Conflicts in National Measures Implementing EU Law’ (SSRN, 5 May 2024) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2432260> accessed 3 October 2024

19

While the comparative analysis in the next chapter will encompass a wide variety of national courts, there will be a considerable focus on Constitutional Courts, which play a vital role in safeguarding the rule of law and fundamental rights within their jurisdictions. They interpret and apply constitutional provisions to ensure that national laws adhere to constitutional norms and principles, and their rulings can profoundly impact the protection of individual rights and the balance of power within their countries.

The interplay between Constitutional Courts and the Charter is complex and multifaceted. The Charter establishes fundamental rights applicable across the EU and serves as a standard for evaluating whether national laws and practices conform to EU norms. This relationship is increasingly defined by a dynamic judicial dialogue, although Constitutional Courts occasionally challenge the CJEU's expansive interpretations of the Charter, particularly when these interpretations appear to encroach upon national constitutional identity or sovereignty.

Furthermore, in recent years, courts across Europe in general have increasingly incorporated the Charter into their national legal frameworks, with Constitutional Courts using it as a basis for their constitutional reviews, thereby also extending their jurisdiction and influence on fundamental rights matters.

S2. Available Judicial Pathways

Some scholars have noted that this could be a reaction44 to what has been referred to as the ‘displacement doctrine’,45 whereby the CJEU is said to be displacing national Constitutional Courts to become the primary protector of fundamental rights across Europe. According to this thesis, this has occurred in part through a ‘rights revolution’ leveraging the Charter and its expansive fundamental rights jurisprudence, and in part due to the functioning of the EU judicial system, which privileges the relationship between ordinary courts and the CJEU.

2.

Regulatory Bodies Regulatory bodies are public or semi-public authorities tasked with the supervision, enforcement, and implementation of specific laws and regulations in various sectors and are designed to ensure compliance with EU laws. Broadly speaking, some key features of regulatory bodies include independence from external influence to ensure unbiased decision-making, technical expertise corresponding to the sector they are specialised in overseeing, enforcement powers to impose sanctions, fines, and other penalties for non-compliance, and coordination with EU Institutions to ensure that national implementation of EU law is consistent. As already mentioned in the previous chapter, both the GDPR and the DSA offer judicial pathways to enforce Charter rights by allowing complaints to be lodged with a regulatory body established under their legal framework.

Marcus M Schnetter, ‘Constitutional Courts as Guarantors of EU Charter Rights: A Rhetorical Perspective on Constitutional Change in Austria and Germany’ (2024) 20(2) European Constitutional Law Review 282.

44

45 Jan Komárek, ‘National Constitutional Courts in the European Constitutional Democracy’ (2014) 12(3) International Journal of Constitutional Law 525.

20

Otherwise known as DPAs, provisions under the GDPR refer to them as independent supervisory authorities. They are regulated by Articles 51 to 62, and Article 77 establishes the right for data subjects to lodge a complaint with them.

In the DSA, the regulatory bodies are referred to as DSCs and they are responsible for all matters relating to the DSA’s supervision and enforcement. DSCs are regulated by Articles 49 to 52, and users have the right to lodge a complaint with them under Article 53. By contrast, the European Commission is the sole enforcer of the DMA, which creates neither regulatory bodies at the national level nor a right to lodge a complaint.

3.

National Human Rights Institutions (NHRI) and Ombuds Institutions NHRIs are independent bodies established by the State through either constitutional or legislative authority in order to promote and protect human rights. They come in various forms–such as ombuds institutions or human rights commissions–and commonly have multiple mandates.46

S2. Available Judicial Pathways

NHRIs are essential in bridging the ‘protection gap’ between the rights of individuals and the responsibilities of the state.47 The Vienna Declaration of 199348 recommended the establishment of NHRIs, following the 1991 UN Paris Principles,49 which outline their functioning and status.

The role of NHRIs extends beyond the promotion and protection of human rights at the national level. It also involves the implementation of international standards, which make NHRIs suitable pathways to address and seek enforcement of fundamental rights, including those under the Charter.

The European Network of NHRIs (ENNHRI)50 supports and connects these institutions, promoting the exchange of best practices and engagement with the EU and other international mechanisms.51

European Union Agency for Fundamental Rights, ‘Strong and effective national human rights institutions challenges, promising practices and opportunities’ (2021) <https://fra.europa.eu/en/publication/2020/strong-effective-nhris> accessed 3 October 2024.

46

‘National Human Rights Institutions/ Ombudspersons’ (National Action Plans on Business and Human Rights) <https://globalnaps.org/issue/national-human-rights-institutions-nhris-ombudspersons/> accessed 3 October 2024.

47

48 World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (1993) <https:// www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/vienna.pdf> accessed 3 October 2024.

OHCHR, UN Principles Relating to the Status and Functioning of National Institutions for the Promotion and Protection of Human Rights (1991) <https://www.ohchr.org/en/instruments-mechanisms/ instruments/principles-relating-status-national-institutions-paris> accessed 3 October 2024.

49

European Network of National Human Rights Institutions, available at <https://ennhri.org/> accessed 3 October 2024.

50

51

For a full list of network members from the jurisdictions covered in this report, see Annex.

21

NHRIs and ombudspersons provide an accessible and cost-effective alternative pathway, especially for individuals facing discrimination.

These institutions often offer free legal assistance and serve as a critical first point of contact for victims of discrimination. Their procedures are typically more streamlined, informal, and approachable, particularly for individuals with limited means or those whose circumstances do not permit going to national courts. The ability of these actors to investigate cases, seize the courts directly, provide legal support, and even engage in strategic litigation, contributes not only to individual cases but also to broader systemic changes.

NHRIs often lack the same level of effectiveness in securing rights and achieving enforceable outcomes because the remedies they propose are frequently non-binding and dependent on voluntary compliance, which can limit their ability to address complex or systemic legal issues.

Furthermore, unlike court rulings, the recommendations or findings from these bodies do not establish legal precedents, thereby diminishing their broader legal impact.

4.

Alternative Dispute Resolution (ADR)

S2. Available Judicial Pathways

ADR refers to a variety of methods designed to settle disputes without the need for traditional court proceedings. There are many types of ADR, including mediation, conciliation, arbitration, and online dispute resolution, among others.

As cross-border transactions increase and digital markets become more complex, ADR has gained increased importance for access to justice and safeguarding consumer rights across EU Member States. Moreover, these approaches provide a more flexible, cost-effective, and often faster alternative to litigation, making them particularly useful for resolving civil, commercial, and consumer disputes.

With the recent entry into force of the DSA, it is foreseeable that there will be an increase in the use of ADR pathways to address fundamental rights issues and enforce Charter rights. The DSA specifically establishes rules around out-of-court dispute settlement procedures through specialised bodies certified by each Member State's DSCs. However, aside from these DSA provisions, ADR in the EU is more broadly governed by a legal framework which consists of the Directive on Consumer ADR,52 the Mediation Directive,53 and the Online Dispute Resolution Regulation.54 On 17 October 2023, the European Commission introduced a new proposal with some significant amendments to the Directive on Consumer ADR to increase its effectiveness in addressing emerging challenges, especially those posed by digital markets and services.55 The proposal would do so mainly by expanding the material and geographical scope of the Directive, with, according to the proposal, the explicit aim of reinforcing the right to an effective remedy under Article 47 of the Charter by increasing access to redress for a wider range of disputes.

22

First, the Commission’s proposal would significantly broaden the scope of ADR to include not only contractual disputes but also rights that may not be explicitly described in contracts or which relate to pre-contractual stages. In particular, these would be rights related to digital content and services, such as rights related to misleading advertising, missing, unclear or misleading information, unfair terms or guarantee rights, or statutory rights to switch service providers or be protected against geoblocking.

The Commission’s proposal also includes improvements in relation to out-of-court dispute settlement under Article 21 of the DSA. The proposed changes would give users complementary means to address issues regarding content related to bad commercial practices by thirdparty traders, rather than users being limited to addressing disputes with intermediaries over content moderation decisions under the DSA. The proposed amendments also aim to enhance the use of ADR for cross-border disputes by improving information rights for consumers, and by providing them with more customised assistance (in particular through European Consumer Centres) and user-friendly digital tools. The proposal would also broaden ADR's geographic scope to cover disputes with nonEU traders.

S2. Available Judicial Pathways

Lastly, the proposal addresses broader access to justice issues, mandating adaptations for vulnerable consumers or those with limited digital literacy skills by including options for non-digital procedures and guaranteed access to a review by a natural person for automated procedures.

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (https://eur-lex.europa.eu/eli/dir/2013/11/oj).

52

The Directive on Consumer ADR aims to ensure consumers can voluntarily submit complaints against traders to independent, fast, and fair ADR procedures through online and offline procedures which are generally free or at a nominal cost.

53 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (http://data.europa.eu/eli/dir/2008/52/oj)

The Mediation Directive encourages the use of mediation in cross-border disputes, aiming to balance mediation with judicial proceedings, promoting voluntary codes of conduct for mediators, allowing courts to suggest mediation to parties in disputes, and seeking enforceable outcomes.

Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (http://data.europa.eu/eli/reg/2013/524/oj)

54

The Online Dispute Resolution Regulation establishes a user-friendly online platform managed by the European Commission for resolving consumer disputes out of court, particularly in cross-border cases.

55 European Commission, Proposal for a Directive of the European Parliament and of the Council amending Directive 2013/11/EU on alternative dispute resolution for consumer disputes, as well as Directives (EU) 2015/2302, (EU) 2019/2161, and (EU) 2020/1828 [2023] 2023/0376 (COD) <https://www. europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2023/0649/ COM_COM(2023)0649_EN.pdf> accessed 3 October 2024.

23

SECTION 3.

Comparative Analysis

The country reports’ descriptions of the application of the Charter and the pathways to enforce it demonstrate how each nation is shaped by its legal traditions, constitutional frameworks, and attitudes toward EU law.

Alternative judicial pathways

In the following sections, we carry out a comparative analysis of the general trends contained in the country reports regarding each of the judicial pathways mapped out in the previous section. We will contrast the most notable aspects contained in each country report, including some of the case studies.

24 24

1.

National Courts Unsurprisingly, given the EU legal framework and the general rules regulating the applicability of the Charter, all 10 country reports mentioned enforcement through national courts as a pathway to enforce Charter rights. However, the reports also show substantial variations in terms of legal practice and approaches to and awareness of the Charter, both within the same countries (depending on the type of court), as well as between the different countries more generally.

Generally speaking, among the countries we focused on, although some ordinary national courts frequently apply the Charter or refer questions to the CJEU, for the most part Constitutional Courts played the most active role. This was mostly the case in Germany, Belgium, Spain; slightly less so in Italy, Portugal, and Croatia; and much less so in France and Greece. In the case of the Netherlands and Ireland, which do not have constitutional courts, their ordinary courts have nonetheless been diligent in applying the Charter.

Germany

S3. Comparative Analysis

The German Country Report highlighted that it is a jurisdiction that stands out for its direct approach to applying the Charter and for its recognition of the Charter’s direct effect in cases involving the implementation of EU law. It was noted that German courts, both administrative and civil, must consider the Charter at every instance, and that the German Court of Cassation (or Federal Court of Justice) has frequently based its decisions on the Charter, thereby significantly influencing national jurisprudence.

Furthermore, the German Constitutional Court, which is often regarded as one of the most influential in Europe, is known for assertively leveraging its influence over matters related to EU law and has applied the Charter in its constitutional review. This assertiveness has led to the Court being seen as a kind of outspoken advocate for national constitutional courts across Europe,56 with the German Constitutional Court sometimes taking a strong stance against the CJEU and challenging its authority.

José Martín and Pérez de Nanclares, ‘El TJUE como actor de la constitucionalidad en el espacio jurídico europeo: la importancia del diálogo judicial leal con los tribunales constitucionales y con el TEDH’ (2017) 39 Teoría y realidad constitucional 235, p. 245 calls the German Constitutional Court a ‘judicial lighthouse’ (author’s translation); see also Monica Claes and Bruno de Witte, ‘The Roles of Constitutional Courts in the European Legal Space’, in A. von Bogdandy et al. (eds), Constitutional Adjudication: Common Themes and Challenges (Oxford University Press 2023), p. 515.

56

25

In a case related to a bond-buying programme of the European Central Bank (ECB) in 2020, the German Constitutional Court went as far as to refer questions to the CJEU and then issue a counter decision overruling the CJEU.57 The EU Commission then initiated infringement proceedings for violation of the Treaties, but eventually closed them after it received assurances from Germany affirming that it recognises the principles of autonomy, primacy, and effectiveness of EU law, as well as the authority of the CJEU.58

Case Study: Right to be Forgotten

This case involved a lawsuit against Google, similar to the Google Spain decision by the CJEU in 2014. The plaintiff sought the removal of search results linking to an interview transcript from 2010, in which a TV channel accused his company of mistreating employees. The plaintiff argued that these links harmed his reputation. The German Constitutional Court followed the Google Spain principles by confirming the right to privacy, but ultimately ruled in favour of Google. Unlike Google Spain, where the harmful publication was a government document, this case involved a private media outlet, and the court considered the indirect impact on freedom of opinion and the media. Therefore, the outcome was different, and the links were not ordered to be removed.

In a groundbreaking decision, the German Constitutional Court also declared its competence to hear constitutional complaints based on the Charter. This shift means the Court will also ensure that fully harmonised EU law, like the GDPR, is applied correctly in light of the Charter. Following this decision, the Constitutional Court supervises German national courts and leaves unresolved general questions to the CJEU. This second ruling was particularly noteworthy because it closely mirrored a previous landmark decision by the Austrian Constitutional Court, which gained attention for being one of the first in Europe to assert its competence to review petitions alleging violations of Charter rights.

S3. Comparative Analysis

Belgium The Belgian Country Report mentioned that the Ligue des droits Humains regularly introduces actions for annulment before the Constitutional Court to challenge the legality of legislative norms in light of EU law. The Court often issues preliminary ruling requests to the CJEU on the basis of the Charter, as well as on the basis of procedures based on Article 209 and 220 of the Belgian Data Protection Law.

Case 2 BvR 859/15, 5 May 2020, German Constitutional Court <https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2019/11/rs20191106_1bvr027617en.html> accessed 3 October 2024.

57

European Commission, ‘December infringements package: key decisions’ (2021) <https://ec.europa. eu/commission/presscorner/detail/en/inf_21_6201?fbclid=IwAR1w6wbHhdcA5vxlqXTohUjxcgF7mJb pSBxTXjxaNWXpMJ0MIzb9Zyuwv7I> accessed 3 October 2024.

58

26

The Belgian Constitutional Court has evolved significantly from its original mandate of resolving jurisdictional conflicts between different levels of government to become a crucial protector of fundamental rights.

Over time, the Court's jurisdiction expanded to include a broader range of fundamental rights, leading it to frequently reference not only the ECHR but also the Charter in its rulings, often taking a proactive approach in applying international human rights standards even in cases where they are not explicitly invoked.59

Law Enforcement Directive Case

On 16 November 2023, the CJEU issued a judgment regarding the right of indirect access to personal data under Article 17 of the Law Enforcement Directive (LED) 2016/680. The case, brought by an individual, was referred to the CJEU by the Brussels Court of Appeal and questioned the availability of judicial remedies when data protection rights are restricted for public interest reasons, specifically when the Belgian Supervisory Body for Police Information (OCIP) denies access to such data.

The CJEU ruled that when a supervisory authority, like the OCIP, informs a data subject of the outcome of its data verifications, it is making a legally binding decision. This decision must be subject to judicial review to ensure the data subject can challenge the lawfulness of the data processing and any decisions made by the authority. Regarding the validity of Article 17(3) LED, the CJEU found that while this article imposes limitations on the right to an effective judicial remedy, guaranteed by Article 47 of the Charter, the limitation can be legitimate if it protects public interest purposes, as long as it respects the essence of judicial protection and balances public interests with the rights of the data subject.

S3. Comparative Analysis

Spain According to the Spanish Country Report, the application of the Charter

by Spanish courts is limited. The lack of pathways to invoke Charter provisions between private parties was cited as an important obstacle.

The Spanish Constitutional Court had historically been reluctant to engage with the CJEU until a significant shift in 2011,60 when the Melloni case marked the Court's first preliminary reference to the CJEU. The reference

Up to 2023, ‘Nearly all Charter provisions have been applied by the Court, the only exceptions being Articles 5 (prohibition of slavery and forced labour), 25 (the rights of the elderly), 26 (integration of persons with disabilities), 27 (workers’ right to information and consultation within the undertaking), 29 (right of access to placement services), 32 (prohibition of child labour and protection of young people at work), 39 (right to vote and to stand as a candidate at elections to the European Parliament), 40 (right to vote and to stand as a candidate at municipal elections) and 46 (diplomatic and consular protection)’ (Luc Lavrysen, ‘The ECHR and the EU Charter of Fundamental Rights in the Case Law of the Belgian Constitutional Court’, Human Rights: A European Perspective – International Conference - Constitutional Tribunal of the Republic of Poland - Warsaw, 15-18 November 2023 <https://www. const-court.be/public/stet/f/stet-2023-002f.pdf> accessed 3 October 2024).

59

Miryam Rodriguez-lzquierdo Serrano, ‘The Spanish Constitutional Court and Fundamental Rights Adjudication After the First Preliminary Reference’ (2015) 16(6) German Law Journal 1509.

60

27

was prompted by a conflict between Spanish constitutional rights and EU law.61 The case was particularly significant because it represented a first interpretation of Articles 51 and 53 of the Charter concerning the Charter’s scope and levels of fundamental rights protection.

Since the Melloni case, the Spanish Constitutional Court has increasingly recognised the need to consider CJEU rulings and EU law in its decisions, particularly when fundamental rights under the Spanish Constitution intersect with those protected under EU law. The Court acknowledged that ignoring CJEU rulings could also harm the fundamental rights guaranteed by the Spanish Constitution, in particular the right to a fair trial. However, despite this progress, some justices of the Spanish Constitutional Court have nevertheless voiced concerns regarding the binding nature of the CJEU's interpretation of Charter rights.62 Lastly, the Spanish Country Report also mentioned the use of the ‘Recurso de Amparo’ before the Constitutional Court as a potential pathway to enforce Charter rights. This is an extraordinary remedy whose sole purpose is to protect against infringements of the fundamental rights protected by the Spanish Constitution. However, this pathway is beginning to show significant potential as a result of the Constitutional Court extending the jurisdictional reach of this mechanism to incorporate the Charter.63

Orange/ASNEF-EQUIFAX Case

The Judgement from the Appeal Court of Pontevedra dated 10th January 2020 invoked Article 8 of the Charter in a case related to the wrongful inclusion of an individual on a defaulter’s list (ASNEF-EQUIFAX). The inclusion was ordered by mobile phone provider Orange based on a debt that was disputed by the claimant.

S3. Comparative Analysis

Typically, such cases are adjudicated using Law 1/1982 and the Spanish Constitution, but this ruling marks a step towards more regular consideration of the Charter by lower courts, particularly in digital rights cases. The Provincial Court of Pontevedra ruled that the claimant’s inclusion on the list breached their data protection rights under Article 8(2) of the Charter and constituted an illegitimate interference with his right to honour. The court also ordered Orange to pay the claimant €2,000 in compensation for moral damages.

61

Case C-399/11, Stefano Melloni v Ministerio Fiscal [2013] ECLI:EU:C:2013:107.

62

Serrano (n 64).

Pedro Cruz Villalón, ‘El dilema de la jurisdicción constitucional de amparo ante la irrupción de la Carta de Derechos Fundamentales’ (2023) 40(2) Anales de Derecho 1.

63

28

Netherlands In the Netherlands, the constitutional system is quite distinctive compared to other European countries. Although a Bill of Rights was introduced into the Constitution in 1983, it omits several rights included in the ECHR and the EU Charter. As a result, the Dutch legal system tends to rely heavily on international and European law, which often provides stronger protections.

The integration of European law into the national legal system has led to a strong European influence. Substantive constitutional norms frequently derive from international and European law, which serve in practice as a ‘substitute constitution’.64 In the absence of a Constitutional Court, constitutional oversight falls primarily to the Council of State, which focuses more on interpreting international treaties than on the Dutch Constitution itself.

Historically, Dutch judges were hesitant to apply the Charter and to fully embrace the jurisprudence of the CJEU. However, over time, they have come to recognise the direct effect and supremacy of EU law, in some cases applying the Charter proactively when it has not even been invoked by the claimants.65

SyRI Case

S3. Comparative Analysis

Under the guise of detecting potential welfare and tax fraud, the Dutch government introduced a computerised system (System Risk Indication or ‘SyRI’) that profiled individuals based on vast pools of personal and sensitive data that had been collected from a range of public bodies. A civil society coalition took the case to a court in The Hague arguing that the law underpinning SyRI should be overturned because it was in violation of the ECHR. They believed that SyRI was used to unfairly target people as being likely to commit fraud based on their place of living or socio-economic background.

In early 2020, a Dutch court ruled that use of the SyRI system violated the right to privacy, marking an important step towards protecting some of society’s most marginalised groups. This was one of the first cases in Europe to challenge State use of ‘predictive policing’ risk-scoring software, and the case could have implications for the widespread challenge of such technologies in policing and other areas. Notably in this case, although the claimant’s legal basis was limited to the right to respect for private and family life under Article 8 of the ECHR, the Court proactively incorporated the substantive rights and general principles of data protection from the Charter and the GDPR into its analysis of whether the SyRI system complied with the ECHR, in particular the principles of transparency, purpose limitation, and data minimisation.

64 Leonard Besselink and Monica Claes, ‘The Netherlands: The Pragmatics of a Flexible, Europeanised Constitution’ in A Albi and S Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (T.M.C. Asser Press 2019).

65

See Syri Case.

29

However, this openness to international and EU law in the Dutch legal system does not necessarily mean that there is sufficient awareness of, or consolidated legal practice related to the use of, the Charter. For example, despite relying heavily on the GDPR, a recent court case brought in Amsterdam by Uber and Ola drivers66 did not actually leverage the Charter.67

Ireland The Irish Country Report noted that the pathway for enforcing Charter rights runs primarily through the ordinary courts, as Ireland does not have a separate administrative court system or a constitutional court.

A significant development in the Irish legal system, which increases the potential to leverage the Charter before the courts, is the amendment of Article A 29.4.6 of the Irish Constitution. The amendment introduced the ‘necessitated obligations’ clause, which confers supremacy on EU law over national law and the Constitution to the extent that this is required by the obligations of EU membership.68 Initially, Irish courts were slow to adopt the Charter, but they are now generally receptive to claims that raise the Charter and frequently make references to the CJEU for preliminary rulings on Charter rights. As an example, three of the most important data retention cases that have come before the ECJ have all originated from Ireland.69

Case Study: Digital Rights Ireland In this pivotal case, the civil society group Digital Rights Ireland brought a case to the Irish High Court claiming the EU Data Retention Directive (2006/24/EC) was incompatible with Articles 7 and 8 of the Charter.

S3. Comparative Analysis

The High Court made a reference to the CJEU, which subsequently ruled that the Directive infringed on these rights by allowing the indiscriminate retention of communication data without adequate safeguards. The proportionality principle under Article 52(1) of the Charter was crucial to this decision.

The Court held that the broad scope of the Directive was neither necessary nor proportionate to the intended objective of combating serious crime and, as a result, the Directive was declared invalid.

66 In this case, the Amsterdam Court of Appeal ruled that under Article 15(1)(h) of the GDPR, drivers have the right to access information about the automated decision-making processes that impact them. The court ordered Uber and Ola to provide detailed insights into how their algorithms operate, including the methodology behind decisions like pricing and the conditions that could lead to the deactivation of driver accounts. The court also criticised Uber’s argument that revealing this information would compromise their trade secrets, stating that the protection of workers’ rights under the GDPR takes precedence. Despite this ruling, Uber was later fined for failing to comply with the court’s order. See 200.295.742/01, 4 April 2023, Amsterdam Court of Appeal <https://uitspraken.rechtspraak. nl/details?id=ECLI:NL:GHAMS:2023:793> accessed 3 October 2024. See also, ‘Uber ordered to pay €584,000 for failure to comply with court order in robo-firing case’ (Worker Info Exchange, 5 October 2023) <https://www.workerinfoexchange.org/post/uber-ordered-to-pay-584-000-for-failureto-comply-with-court-order-in-robo-firing-case> accessed 3 October 2024.

67 The Dutch litigator in this case mentioned that the emphasis was more on the GDPR than on constitutional rights, and that in general they would be more inclined to use the Charter in cases against the government.

68 Gerard Hogan, ‘Ireland: The Constitution of Ireland and EU Law: The Complex Constitutional Debates of a Small Country’ in A Albi and S Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (T.M.C. Asser Press 2019).

30

Italy The Italian Country Report noted that the Charter can be invoked in multiple settings. Courts can recognise the direct effect of Charter provisions,70 interpret national legislation in light of the Charter, and disapply national laws that conflict with the Charter based on the primacy principle.71 These measures can be used not only in ordinary proceedings but also as a basis to refer matters to higher courts, such as the Court of Cassation for civil and criminal matters, the Council of State for administrative matters, and the Constitutional Court for constitutional review.

It was also noted that the Court of Cassation could offer a potentially significant pathway to enforce the Charter due to its ‘nomophylactic’ function, meaning its function of ensuring compliance with the law and its uniform interpretation.72 As to the types of cases and procedures where the Charter may be invoked, much will depend on the fundamental right involved and the specific context of the infringement.73 The Charter can also be invoked before the Italian Constitutional Court as grounds to request the annulment of a law based on Articles 11 and 117 of the Italian Constitution. However, the roles of the Italian Constitutional Court and the CJEU in cases involving both EU law and the Italian Constitution remain uncertain. The Italian Constitutional Court employs a ‘counter-limits’ doctrine, which has been described as a doctrine of deferential and operational cooperation, albeit with the retention of a margin to ensure the vitality of the Italian Constitution. 74

See Digital Rights Ireland Case Study, as well as C-140/20-1, GD v Commissioner of An Garda Síochána, 25 March 2020, Supreme Court of Ireland <https://curia.europa.eu/juris/showPdf.jsf?text=&d ocid=226341&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1931729> accessed 3 October 2024.

69

However, it is still uncertain which provisions have direct effect and to what extent. See Sacha Prechal, ‘Horizontal direct effect of the Charter of Fundamental Rights of the EU’ (2020) 66 Revista de Derecho Comunitario Europeo 407.

S3. Comparative Analysis

70

Michael Dougan, ‘Primacy and the Remedy of Disapplication’ (2019) 56 Common Market Law Review 1459.

71

According to the Italian Country Report, a recent development in the Italian system that could also be relevant is the introduction of a preliminary procedure, regulated by Article 363 bis of the Code of Civil Procedure (CPC), which allows the Court of Cassation to rule on new legal issues of significant importance. These rulings will influence not only the parties involved but also the entire judiciary in accordance with the Court’s nomophylactic role. Also potentially relevant for upholding Charter rights is the procedure provided for by Article 700 of the CPC, which establishes an urgent and precautionary procedure allowing the judge to take provisional emergency measures to secure the effect of a future decision on the merits.

72

A potential example mentioned in the country report would be that of trade unions invoking the right of collective bargaining and action under Article 28 of the Charter challenging anti-union behaviour by employers based the Italian Workers Statue. This instrument has already shown potential in the digital rights field (although without reference to the Charter) when it was leveraged in conjunction with a new Transparency Decree in cases addressing automated decision-making and platform workers’ rights. See Tribunale di Palermo 31 March 2023; Tribunale di Palermo 20 June 2023; Tribunale di Torino 7 August 2023 (all available at https://www.wikilabour.it/segnalazioni/sindacale).

73

74 Alessia Ottavia Cozzi, ‘The Italian Constitutional Court, the plurality of legal orders and supranational fundamental rights: a discussion in terms of interlegality’ (2022) 1(3) European Law Open 606.

31

Portugal Although the Portuguese Constitutional Court has shown caution in reviewing the constitutionality of European rules under the assumption that the core values of the Portuguese Constitution are generally shared by the EU legal order,75 recently it has begun to explicitly address the supremacy and direct effect of EU law over its Constitution.76 Furthermore, the supremacy of EU law is indirectly recognised in Article 8(4) of the Portuguese Constitution, which states that the provisions of the treaties governing the EU, as well as the rules issued by EU institutions, are applicable within Portuguese domestic law. As a result, international rules are enforceable within the Portuguese legal system without the need for transposition.77 Moreover, in addressing the scope and interpretation of fundamental rights according to the Constitution, Article 16 establishes that the rights enshrined in the Constitution do not exclude those provided by international law.

Portuguese Data Retention Law Repeal Case In this case, the Portuguese Ombudsman requested a constitutional review of the national data retention law 32/2008, which allowed the retention of telecommunications metadata for one year to assist criminal investigations. The Portuguese Constitutional Court ruled that the retention of traffic and location data, the ease of access by law enforcement authorities, and the lack of user control over this data, amounted to disproportionate restrictions on fundamental rights, in particular Articles 26 and 35 of the Portuguese Constitution, which protect the right to privacy and information self-determination. The Court declared the law unconstitutional.

S3. Comparative Analysis

Since the Portuguese domestic law in question was a transposition of the EU Directive 2006/24/EC on Data Retention, the Court also based its decision on the CJEU’s ruling in the Digital Rights Ireland case, which invalidated that Directive.

Additionally, the Court emphasised the importance of interpreting national laws in line with EU law in order to harmonise national constitutional protections with the corresponding rights in the Charter, specifically the rights to privacy and data protection under Articles 7 and 8.

Francisco Pereira Coutinho and Nuno Piçarra, ‘Portugal: The Impact of European Integration and the Economic Crisis on the Identity of the Constitution’, in A Albi and S Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (T.M.C. Asser Press 2019).

75

Decision №422/2020, 15 July 2020, Portuguese Constitutional Court <https://www.tribunalconstitucional.pt/tc/acordaos/20200422.html> accessed 3 October 2024.

76

77 European Union Fundamental Rights Agency, ‘The EU Charter of Fundamental Rights in Portugal’ (2019) <https://fra.europa.eu/sites/default/files/fra_uploads/fra-eu-charter-in-portugal.pdf> accessed 3 October 2024.

32

Croatia According to the Croatian Country Report, administrative and civil courts in Croatia do not frequently refer to the Charter, despite its applicability.

However, the report highlighted that the Croatian Constitutional Court regularly publishes its decisions, and that the Constitutional Court often refers to the Charter (most prominently in criminal procedure cases). The Constitutional Court's mandate includes supervising the constitutionality of laws and handling constitutional complaints. These can be filed against the decisions of government bodies, local authorities, or public entities for violations of fundamental rights once all other judicial pathways have been exhausted.

France The French Country Report mentioned that the Charter rarely appears on its own in the reasoning of the French courts, and that judges more often rely on the ECHR or constitutional provisions, with references to the Charter being of a more suppletive nature.

S3. Comparative Analysis

The report also stated that the potential to invoke the Charter before the French Constitutional Court is limited, since in general terms, the Court does not assess the compatibility of national laws with EU treaties.

It only has the right to do so when EU directives are transposed in order to uphold the French constitutional identity, but the Court’s review is limited in scope and there are procedural limits on when a case can be referred to the CJEU. This makes the process less comprehensive and effective compared to similar reviews by other constitutional courts.78 However, the report also noted that the French Court of Cassation79 and the Council of State80 both invoke the Charter in disputes between private individuals. Furthermore, the provisions of the Charter that meet the criterion of self-sufficiency may be relied upon autonomously in the context of private law relationships in order to set aside a national law at odds with EU law.

78 Davide Paris, ‘Constitutional courts as European Union courts: The current and potential use of EU law as a yardstick for constitutional review’ (2017) 24(6) Maastricht Journal of European and Comparative Law 792.

Cass. soc., n° 13-20.891, 4 février 2015, Cour de cassation; Cass. soc., n° 13-15.625, 18 décembre 2013, Cour de cassation.

79

80 N° 370515, 4 juin 2014, Conseil d’Etat, Halifa, <https://www.legifrance.gouv.fr/ceta/id/CETATEXT000029046224/> accessed 3 October 2024.

33

Greece According to the Greek Country Report, the application and use of the Charter is not widespread. Case law rarely refers to the Charter, and when it does, it is only to reference it as a human rights instrument, and the courts rarely interpret its provisions or directly apply its articles. However, the report also noted that ‘pilot trials’, which are an interesting tool recently introduced in the Greek legal system, could serve as a novel pathway to enforce Charter rights.81

2.

Regulatory Bodies While the explanatory text in the questionnaire mentioned independent authorities as an example, interestingly, only four out of the 10 country reports mentioned this pathway.82 However, less surprisingly, all four of these country reports referred to DPAs, while DSCs under the DSA were not mentioned in any of them. We can safely assume this is due to the novelty of the DSA and the lack of legal practice leveraging this pathway so far among Member States.

France

S3. Comparative Analysis

The French Country Report listed complaints to their DPA, the Commission Nationale de L'informatique et des Libertés (CNIL), as an available judicial pathway to enforce Charter rights, highlighting the fact that the CNIL has often invoked the Charter in its decisions imposing fines, in particular Articles 7, 8, and 41.

A distinctive feature highlighted in the report is that the the CNIL Preseident has the right to appeal CNIL’s decisions within two months, as well as before the French Council of State under the French Code of Administrative Justice.

81 Greek Code of Civil Procedures, Article 20(A). Essentially, when a novel and complex matter of legal interpretation arises with the potential to impact a wide group of people, any claim or appeal lodged before a civil court can be referred to the plenary session of the Supreme Court. A referral is made by an act of a three-member committee of the Supreme Court upon the request of any litigant or court.

The resulting Supreme Court judgment aims to signal to the rest of the courts a path to adjudicate cases of a similar nature in the future.

82

Namely France, Croatia, Portugal, and the Netherlands.

34

Croatia Complaints before the Croatian national DPA were also identified as a judicial pathway. The Croatian Country Report noted that although the DPA’s decisions can be appealed through an administrative court claim, the courts seldom disagree with the DPA's rulings due to their lack of experience in data protection law and the expected difficulties they would encounter with quantification of damages and unfamiliar concepts under the GDPR. Furthermore, although the courts would benefit from observing the DPA's interpretations of the law, the report also stated that the DPA publishes very few decisions, only a total of 22 since its creation in 2018.

One distinctive feature of the Croatian legal system is the possibility to appeal a DPA decision before the Constitutional Court once all judicial instances have been exhausted.

Portugal Among the judicial pathways listed in the Portuguese Country Report was the complaints procedure before the Portuguese DPA, the Comissão Nacional de Proteção de Dados (CNPD). Notably, the report mentioned that the CNPD operates within the Portuguese Parliament.

Netherlands

S3. Comparative Analysis

The Dutch Country Report mentioned complaints before their national DPA, Autoriteit Persoonsgegevens (AP), as an available judicial pathway and highlighted the fact that it is possible to request documents from the AP regarding ongoing investigations under the Open Government Act (Wet open overheid).

35

3.

National Human Rights Institutions (NHRI) and Ombuds Institutions Only three of the 10 country reports mentioned NHRIs and Ombuds Institutions as judicial pathways to enforce Charter rights.83 While all the countries included in this report (but for Italy) have a NHRI and an Ombuds institution,84 their scope and functions vary considerably across Member States.

For example, a survey conducted by the EU’s Agency for Fundamental Rights (FRA) in 202485 revealed that out of the 26 NHRIs that responded, 15 reported using the Charter in 2023 for education, training, and awarenessraising activities; 11 indicated that they applied the Charter’s provisions when advising their respective governments;86 five reported using the Charter in litigation before courts;87 and lastly, the Commissioner for Administration and the Protection of Human Rights in Cyprus was the only institution that indicated it applied the Charter in the context of mediation.

Netherlands

S3. Comparative Analysis

The Dutch Country Report highlighted two NHRIs as potential enforcement pathways for Charter rights. The first is the Dutch Institute for Human Rights, which, among other things, reviews individual cases to determine whether someone has been discriminated against at work, at school, or as a consumer.88 As noted in the FRA's survey mentioned above, the Institute reported using the Charter for education, training, and awareness-raising activities.

The other is the National Ombudsman, which handles complaints against government bodies, including on data protection issues. Claims can invoke data protection rights under the Charter as well as rights derived from the GDPR, providing an alternative route to formal legal action.

83

Namely the Netherlands, Greece, and Croatia.

84

See Annex.

European Union Agency for Fundamental Rights, ‘NHRI accreditation status and mandates – update 2024’ (2024) <https://fra.europa.eu/en/publication/2024/nhri-accreditation-status-and-mandatesupdate-2024> accessed 3 October 2024.

85

The Austrian Ombudsman Board; Belgium’s Federal Institute for the Protection and Promotion of Human Rights (FIRM) and the Interfederal Centre for Equal Opportunity and the Fight Against Racism and Discrimination (Unia); the German Institute for Human Rights; the Netherlands Institute for Human Rights; the Ombudswoman of the Republic of Croatia; and the Irish Human Rights and Equality Commission.

86

87 The Ombudswoman of the Republic of Croatia, the Danish Institute for Human Rights, the Irish Human Rights and Equality Commission, the Ombudsman of the Republic of North Macedonia, and the Swedish Equality Ombudsman.

See Discriminatory E-proctoring Software and Gender Discrimination in Facebook’s Job Ad Algorithms Case Studies.

88

36

Case Study: Discriminatory E-proctoring Software This case was brought by Robin Pocornie, who filed a complaint before the Dutch Institute for Human Rights because the e-proctoring software Proctorio, which was used during the COVID-19 pandemic to monitor exams at the Vrije Universiteit Amsterdam (VU), failed to recognise her face due to her dark skin colour, hence violating her right to non-discrimination under Article 14 ECHR (which corresponds to Article 21 of the EU Charter).

In a preliminary decision, the Institute found that there was sufficient evidence to suggest the software was discriminatory. However, in its final judgment, it focused only on Pocornie’s individual experience, ruling that the VU was not required to demonstrate that no racial discrimination occurred in the use of the Proctorio software across the board. Despite scientific evidence that facial recognition technology often performs poorly for people with darker skin, the Institute determined that there was no conclusive legal proof of discrimination in Pocornie’s specific case. Nevertheless, the ruling acknowledged the possibility that such software could lead to discrimination in other scenarios.

Case Study: Gender Discrimination in Facebook’s Job Ad Algorithms In this case, Global Witness, Fondation des Femmes in France, and Bureau Clara Wichmann launched complaints against Meta for gender discrimination related to how Facebook’s algorithm targets job ads. The complaints were filed with the Dutch Institute for Human Rights and the French Defenseur des droits and called for investigations into Facebook’s compliance with national equality legislation.

Global Witness and its partners also submitted enforcement requests to DPAs in the Netherlands and France to review Facebook’s adherence to data processing laws. The case follows similar legal actions in other countries, such as the U.S., where Facebook faced allegations of discrimination in housing ads, leading to a settlement and the development of a new ad delivery system.

S3. Comparative Analysis

Greece The Greek Country Report also mentioned two NHRIs as potential pathways for the enforcement of Charter Rights. The first is the Greek Ombudsman, which acts as guardian of the people’s rights in both the public and private sectors, with special attention paid to monitoring and promoting the implementation of the principle of equal treatment, the rights of the child, and the rights of vulnerable groups.

The other enforcement pathway is the Greek National Commission for Human Rights, which monitors developments regarding human rights protection both domestically and internationally. Its role is to inform Greek public opinion about human rights-related issues and to provide guidelines to the Greek State aimed at the establishment of a modern, principled policy of human rights protection, including on issues such as data protection.89 Decisions and positions on data protection issues available at: <https://www.nchr.gr/en/decisionspositions/95-personal-data.html> accessed 3 October 2024.

89

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Case Study: Balancing Freedom of Information and the Presumption of Innocence In a case involving the tension between media freedom and the presumption of innocence, a defendant was brought to trial and faced significant media coverage that risked prejudicing public opinion. The case raised concerns about the impact of such media reporting on the defendant’s fundamental right to a fair trial by creating a ‘media trial’ that could influence the outcome of the actual legal proceedings.

The Greek National Commission for Human Rights took action by addressing the need to protect the presumption of innocence while ensuring the public’s right to information. The Commission aimed to strike a balance between these competing interests by issuing recommendations focused on enforcing ethical guidelines for the media.

Croatia Complaints before the Ombudswoman were also highlighted in the Croatian Country Report as a potential pathway to enforce Charter rights. The Ombudswoman functions as a Commissioner for the Croatian Parliament, with a mandate to promote and protect human rights and freedoms under both Croatian and international law.

Citizens who believe their rights have been violated by State bodies, local authorities, or public officials, or who have been subject of discrimination, have the right to file a complaint with the Ombudswoman's office.

S3. Comparative Analysis

Furthermore, as noted in the FRA's recent survey, the Croatian Ombudswoman reported using the Charter not only for education, training, and awareness-raising activities, but also reported applying the Charter’s provisions when advising the government, and most importantly, in litigation before courts.

3.

Alternative Dispute Resolution (ADR) Similarly to NHRIs and Ombuds Institutions, only three of the 10 country reports90 mentioned ADR as a pathway to enforce the Charter.

However, most EU Member States have incorporated specific provisions on mediation–and, in some instances, other ADR processes–into their national legal frameworks to enhance the quality and efficiency of justice.

90

Namely Greece, Portugal, and the Netherlands.

38

For example, in Italy,91 Greece,92 France,93 and Spain,94 certain forms of ADR, such as mediation, are mandatory before one can proceed to formal court litigation in specific disputes.95 In other countries, such as Ireland96 and France,97 there is an obligation for lawyers to advise parties to consider using mediation to resolve disputes. In Germany and Croatia, ADR remains optional, although it is generally encouraged by the State and the courts.

In the Netherlands,98 Portugal,99 and Italy,100 the law allows parties to request that the contents of a written agreement resulting from a mediation be made enforceable.

91 A system of civil and commercial mediation, aimed at settling disputes in respect of any entitlement that the parties are free to renounce or transfer (diritti disponibili), was introduced in Italy by Legislative Decree No 28/2010 <https://www.normattiva.it/atto/caricaDettaglioAtto?atto. dataPubblicazioneGazzetta=2010-03-05&atto.codiceRedazionale=010G0050&currentPage=1> accessed 3 October 2024.

92 In Greece, mediation is regulated by Law 4640/2019 (Gov. Gazette A’ 190/30.11.2019) as applicable after Law 5108/2024 amended Article 3 on civil and commercial disputes. Mediation is mandatory for certain private law disputes such as family matters, particularly the amount of allowances, child custody etc., or disputes arising from the use or operation of real estate ownership.

Law no. 2019-222 of 23 March 2019 introduced an obligation to attempt mediation, conciliation, or a participatory procedure before seizing the judicial court for disputes with an amount at stake of less than € 5,000, or relating to a neighbourhood dispute (article 750-1 of the Code of Civil Procedure).

This requirement was initially annulled by the French Council of State, but was reintroduced into the law by the legislator by Decree no. 2023-357 of 11 May 2023.

93

94 Recent legislative changes have made ADR a mandatory prerequisite before civil claims can proceed to court. This requirement aims to alleviate the judicial system’s burden and promote more efficient conflict resolution methods. Under the new regulations, parties involved in a dispute must attempt ADR processes such as mediation, conciliation, or arbitration before initiating formal legal proceedings (‘Alternative Dispute Resolution (ADR) in Spain: What is it and Procedures’ (Lawants) <https://www.lawants.com/en/adr-spain/> accessed 3 October 2024).

European Commission for the efficiency of justice, ;Guidelines on Online Alternative Dispute Resolution’ (2023) https://rm.coe.int/cepej-2023-19final-en-guidelines-online-alternative-disputeresolution/1680adce33 accessed 3 October 2024.

95

S3. Comparative Analysis

96

Articles 14-15 Mediation Act 2017.

Since 1 January 2016, professionals have also been obliged to provide consumers with the contact details of the consumer mediator in their economic sector (article L.612-1 of the French Consumer Code), enabling consumers to initiate a mediation process in the event of a dispute with a professional.

97

98 ‘Mediation in EU countries’ (European Justice) <https://e-justice.europa.eu/64/IT/mediation_in_ eu_countries?NETHERLANDS&member=1> accessed 3 October 2024.

Law Noº 29/2013 of 19 April 2013 (the ‘Mediation Law’), establishes the national framework for mediation as one of the ADR mechanisms. The agreement obtained through mediation is enforceable provided that: (i) it relates to a dispute that can be the subject of mediation, and the law does not require ratification by a court; (ii) the parties have the capacity to conclude such an agreement; (iii) it was obtained through mediation carried out under the terms laid down by law; (iv) its content does not infringe public policy; (v) it involved the participation of a mediator enrolled on the list of mediators kept by the Ministry of Justice.

99

100 Article 12 of Legislative Decree No 28/2010 states that, where all the parties taking part in the mediation are assisted by a lawyer, the agreement which has been signed by the parties and the lawyers themselves constitutes an enforceable instrument for compulsory expropriation (espropriazione forzata), the obligation to transfer certain assets (esecuzione per consegna e rilascio), performance of a positive or negative obligation (esecuzione degli obblighi di fare e non fare), and registration of a judicial mortgage (ipoteca giudiziale). Lawyers attest and certify that the agreement complies with the mandatory rules and public policy. In all other cases, the agreement annexed to the minutes is approved, at the request of a party, by decree of the president of the court, after it has been established that it is formally correct and that the mandatory rules and the requirements of public policy have been complied with.

39

Greece The Greek Country Report notes that even though the use of ADR in Greece has been limited in the past, Ministerial Decision 70330/30.6.2015101 and the subsequent enactment of Mediation Law 4640/2019 marked a significant turning point, fostering a cultural shift in legal practice towards the adoption of mediation.

According to the report, mediation is now expressly provided for in various laws on the settlement of disputes and is mandatory in certain types of disputes. Furthermore, the report also highlighted that a proposal to amend the ADR regime will make the mechanisms more accessible and personalised, in particular for vulnerable consumers.

Portugal The Portuguese Country Report also mentioned ADR mechanisms available for civil actions as a pathway to enforce fundamental rights under the Charter. The report noted that the ADR mechanisms are available under the general provisions of national procedural legislation, including Mediation Law 29/2013 and Arbitration Law 62/2011.

Netherlands

S3. Comparative Analysis

In the Dutch Country Report, the out-of-court dispute settlement bodies under the DSA were mentioned as a potential judicial pathway. The report also highlighted the fact that the project committee on Online Content Moderation of the Ministry of Justice is working on a pilot platform for victims of harmful online content.

4.

Obstacles and Access to Justice The effective implementation of the Charter at the national level faces several recurring challenges, particularly in the enforcement of digital rights where prompt and well-informed judicial interventions are critical. As mentioned in the chapter on methodology, the experts contributing to the country reports responded to the question: ‘What are the most common obstacles in getting a ruling using the EU Charter on a national level in your jurisdiction?’ According to their findings, the most prominent barriers

Which implemented the ADR Directive at the national level and set supplementary rules for the application of the ODR Regulation.

101

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include protracted legal proceedings, high litigation costs, and a lack of awareness or understanding of the Charter among legal professionals and the judiciary.

While lengthy judicial proceedings are widely acknowledged to be a significant obstacle across various jurisdictions, only three of the 10 countries studied identified this as a key issue. The Belgian country report noted that the length of cases, especially when they involve complex digital rights issues, is a major barrier. For example, the case brought by the Ligue des droits Humains concerning indirect access to personal data has been ongoing for five years (it was filed in 2020), with no resolution expected until 2025.102 Similarly, the Passenger Name Record case was brought by the Ligue des droits Humains in 2017, with a ruling by the Constitutional Court issued in 2019, followed by a CJEU ruling in June 2022, and a new ruling by the Constitutional Court issued in 2023.103 The Irish Country Report noted that delays of up to seven years are not uncommon, citing the GD v Commissioner of An Garda Síochána case as an example.104 The German country report also emphasised that prolonged proceedings deter individual claimants and CSOs, as many cases take years to reach a final decision.

These delays are particularly detrimental to marginalised groups, and in general to those with limited financial resources, for whom access to justice is already challenging. The protracted nature of legal processes, combined with inadequate resources, erodes trust in the justice system.

S3. Comparative Analysis

In the digital sphere, the impact of delays is even more pronounced.

Swift judicial resolutions are essential in cases involving rapidly evolving technologies, particularly where privacy is concerned. Time-sensitive disputes risk becoming obsolete by the time a ruling is issued, diminishing the practical impact of judgments. Additionally, ongoing digital rights violations, like unauthorised data collection or security breaches, continue to harm individuals and businesses if not promptly addressed.

Another significant obstacle identified in three of the 10 countries is a lack of awareness of the Charter among legal practitioners and the judiciary. For instance, the Croatian Country Report revealed that only one Croatian County Court has directly referenced the Charter,105 and overall, courts demonstrate limited familiarity with the Charter’s provisions. While the High Administrative Court has occasionally cited the Charter, only one of these cases involved digital rights, specifically under the GDPR.106 The French Country Report mentioned that the Charter rarely appears on its own in the reasoning of the French courts, and judges more often rely on the ECHR or constitutional provisions, with references to the Charter being of a more suppletive nature. As a result, references to the Charter do not produce identifiable legal effects, making it difficult to assess its added value or influence on litigation related to the application of EU law.107 102

See n 63.

Case C-817/19, Ligue des droits humains ASBL contro Conseil des ministres [2022] ECLI:EU:C:2022:491.

103

104

Case C-140/20 (n 75).

Decision Gž Ovr 532/2021-2, DATE, County Court in Zagreb, <https://www2.iusinfo.hr/sudskapraksa/ZSRH2021ZgGzOvrB532A2> accessed DATE. 105

Decision ref.no. Usž 3388/2021-2, 6 April 2022, High Administrative Court of the Republic of Croatia, <https://www2.iusinfo.hr/sudska-praksa/UpSRH2021UszB3388A2> accessed DATE.

106

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The Greek Country Report added that insufficient qualifications among lawyers compound the lack of awareness of the Charter. The report highlighted the need for more specialised training on the Charter’s scope and interpretation to bridge this knowledge gap. The Croatian Country Report echoes this, stressing the importance of increasing legal education and training for professionals, public authorities, and the public at large.

High litigation costs were highlighted as a key obstacle only in the Irish Country Report, which quotes a retired High Court judge who commented that only ‘paupers and multimillionaires’ can afford to litigate in Irish courts given the high fees and the ‘loser pays’ rule, which deters individuals from pursuing legal action due to the financial risks involved.

Country-specific obstacles reflect structural difficulties in applying the Charter. The Italian Country Report highlighted the ongoing debate over whether fundamental rights can be invoked between private parties, often relying instead on national constitutional norms.108 It also noted uncertainty surrounding the content and application of certain Charter rights, particularly Article 8 on personal data protection. Another key challenge in Italy is the inconsistent application of EU principles like effectiveness and proportionality, which creates legal uncertainty and makes it difficult to predict outcomes.

S3. Comparative Analysis

According to the Spanish Country Report, the application of the Charter

by Spanish courts is limited, and the report cites a lack of pathways to enforce Charter provisions between private parties as an important obstacle. However, the report does note that courts have been keener to make preliminary references to the CJEU to clarify the interpretation and scope of the Charter in the context of labour law cases, although not in civil jurisdiction cases.109 Among the obstacles mentioned in the country reports, financial barriers and procedural complexities are highlighted as significant challenges.

Although the reports don’t specifically address how these issues affect access to justice for marginalised groups, the 2023 European Commission report emphasised that such obstacles disproportionately impact people in vulnerable situations, such as those with low incomes, victims of domestic violence, migrants, and ethnic minorities.110 The ENNHRI confirms that vulnerable individuals, such as migrants, victims of trafficking, and ethnic minorities, face considerable challenges in accessing justice due to high costs and procedural difficulties.111

Romain Tinière, ‘Charte des droits fondamentaux de l’Union européenne’ [2020] JurisClasseur Europe Traité 160; M. Safkan, D. Düsterhaus et A. Guérin, ‘La Charte des droits fondamentaux de l’Union européenne et les ordres juridiques nationaux, de la mise en œuvre à la mise en balance’ [2016] RTDE 219.

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108 Emanuela Navarretta and Elena Bargelli, ‘The Influence of Human Rights and Basic Rights in Italian Private Law: Strategies of “Constitutionalisation” in the Courts Practice’, in Trstenjak and Weingerl (eds), The Influence of Human Rights and Basic Rights in Private Law (Springer 2016).

109 See for instance, Joined Cases C-569/16 and C-570/16 Bauer and Willmeroth [2018] and C-684/16 Max-Planck-Gesellschaft zur Förderung der Wissenschaften [2018].

110 Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Effective legal protection and access to justice 2023 Annual report on the application of the EU Charter of Fundamental Rights’ (2023) <https://commission.europa.eu/document/download/435ae4e8-f5f4-432b-a391-b05468474a1e_ en?filename=COM_2023_786_1_EN_ACT_part1_v3.pdf> accessed 3 October 2024.

111 ENNHRI, ‘State of the rule of law in Europe - 2023, Reports from National Human Rights Institutions’ (2023) <https://ennhri.org/rule-of-law-report-2023/> accessed 3 October 2024.

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Furthermore, a report by the EU Commission pointed to the lack of accessible information, challenges in navigating digital platforms, and insufficient support for children's rights in judicial proceedings as additional barriers to justice. The Greek Country Report similarly emphasised that the shift towards digitalisation presents new challenges for those with limited access to or proficiency in digital technologies. However, it also acknowledged that digital tools have the potential to improve access to justice by enabling electronic submission of documents, communication with courts, and participation in virtual hearings.112

S3. Comparative Analysis

Even when it comes to the pathways that are supposed to be more accessible and a swifter response to online harms on platforms, such as the platforms' internal complaint-handling systems or the out-of-court dispute settlement mechanisms under the DSA, there are still major access to justice issues looming. For example, research shows that the majority of people who suffer online harms do not take action. This can be because they have little confidence in a fair judgment or because they are seeking outcomes beyond the content moderation decision itself (e.g. uncovering or punishing a perpetrator). There are also more practical aspects to consider, such as how findable, user-friendly, and understandable the points of contact are.113 Moreover, the effect on the protection of marginalised groups will largely depend on which organisations receive certification to conduct these out-of-court procedures and the scope of their expertise.114

112

Report from the Commission (n 122).

113

van Duin and others (n 24).

114

Ortolani (n 10).

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CONCLUSION Although the Charter provides a corpus of modern and well-developed human rights protections that could be beneficially leveraged to advance digital rights, awareness as to its potential and the available judicial pathways to enforce it remains relatively low.

Anecdotal evidence from our work in the digital rights field had already suggested that, despite this potential, there remains a tendency among CSOs when developing their litigation strategies to default towards reliance on the less specific rights included in national constitutional or administrative laws or in the ECHR. The findings of this report align with these intuitions.

The analysis of the country reports showed that the GDPR, DSA, and DMA provide most of the judicial pathways to enforce Charter rights. These pathways are, namely, national courts, regulatory bodies, and ADR, as well as others such as the internal complaint-handling system that platforms are mandated to put in place by the DSA.

Alternative judicial pathways

The analysis of these legal instruments through the prism of the Charter showed how these regulations and judicial pathways could inform litigation strategies to advance digital rights. It also shows intersections between the main Charter rights protected in those legal instruments and other interconnected or interdependent rights and shows how the former can enable the latter through the provisions contained in these regulations.

Although all the country reports on which this report is based clearly identified national courts as viable judicial pathways to enforce Charter rights, other judicial pathways such as regulatory bodies, NHRIs, Ombuds Institutions, and ADR were less prominent. Furthermore, the reports confirmed that while in some jurisdictions the Charter has widespread application in legal practice and among national courts, progress is still needed in many other jurisdictions to raise courts’ awareness of their ability to apply the Charter directly in accordance with EU law. Work is also needed to improve the willingness of courts to do so. An increased use of the Charter by litigators might be one way to catalyse that progress.

The country reports also showed how Constitutional Courts seem to be more proactive in their application of the Charter. This could be in part due to a motivation to remain relevant in the realm of fundamental rights protections and as a reaction to the perceived phenomenon of ‘displacement’ by the CJEU. The German Constitutional Court has consolidated its influence in that regard, but there are developments still unfolding which might indicate a wider trend in that direction, for example in the case of the Spanish Constitutional Court.

Regulatory bodies also remain an important, specialised, and accessible judicial pathway to enforce Charter rights. The potential of this pathway could be renewed, not only through the DSCs created by the DSA, but also with the proposal on the horizon for the procedural harmonisation of GDPR enforcement. This could mean that litigators might be able to finally start to overcome the bottlenecks, legal uncertainty, and ineffective

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enforcement which has generally plagued the DPA landscape since the entry into force of the GDPR. Regarding NHRIs and Ombuds Institutions, the country reports showed that while they are on the radar of some practitioners, they remain a relatively under-utilised pathway to enforce Charter rights. This is despite having a series of advantages in terms of cost-effectiveness and in elements related to access to justice more broadly. The focus of NHRIs and Ombuds Institutions on anti-discrimination could be of particular importance to marginalised communities which bear the disproportionate brunt of digital oppression and harms. More coordination between CSOs and these institutions would be beneficial due to their multi-faceted potential.

They can not only be leveraged to file complaints, but (as one of the case studies illustrates) they can also form part of a joint strategy to engage other independent authorities like DPAs in order to trigger investigations or strategic litigation.

Alternative judicial pathways

Lastly, the country reports also showed some degree of awareness amongst our network around ADR as a judicial pathway to enforce the Charter. The out-of-court dispute settlement bodies certified by Member States' DSCs under the DSA are now a tool that the digital rights community has at its disposal, as well as platforms' internal complaint-handling systems, which could also fall under a broad definition of ADR. This pathway might, in many cases, prove to be a quicker and much more cost-effective way to address content moderation and account suspension decisions. As this pathway does not preclude legal actions before national courts, it makes it an avenue worth pursuing (or at least considering) depending on the rights infringed and the goals pursued by the user.

Additionally, more knowledge sharing and collaboration appears to be necessary to explore potential test cases leveraging EU frameworks such as the GDPR, the DSA, and the DMA (as well as provisions within them that could be mutually reinforcing) in novel or creative ways in conjunction with the Charter. Further work is also required to explore judicial pathways that exist in adjacent legal frameworks (such as consumer protection law and equality law, to name a few) and to explore ad hoc pathways, rather than focusing solely on remedies included in those laws and regulations perceived as specifically regulating digital rights issues.

A concrete example of an ad hoc pathway that came up during the discussions in one of our workshops is related to the Technical Regulation Information System procedure under Directive 2015/1535.115 Failure to notify certain national laws to the Commission before they are adopted makes those laws invalid as a matter of EU law. This can be used to invalidate national laws regarding surveillance and freedom of expression, for example.116 Finally, through evidence-based research, consultation, and knowledge sharing, we hope to continue to further resource the toolkits of legal experts and practitioners, CSOs, and social justice organisations to advance digital rights for all.

115 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society Services [2015] OJ L 241 <https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX%3A32015L1535> accessed 3 October 2024.

Simon McGarr, ‘The Gist: Too Urgent To Get Right’ (The Gist, 5 December 2022) <https://www. thegist.ie/the-gist-all-trss/> accessed 3 October 2024.

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Authored by: César Manso-Sayao (Digital Freedom Fund) Federica Genovesi (StraLi) Editor Alexandra Giannopoulou (Digital Freedom Fund) Copyediting Emma Irving Creative Direction Marea Zanlungo Graphic design Justina Leston Illustrations Kruthika N.S

Copyright This work is published under a CC BY-SA 4.0 license (Creative Commons Attribution and ShareAlike) The full license is available here.

Human-readable summary here.

Credits

Developing Information, Guidance, and Interconnectedness for (Charter) Rights Integration in Strategies for Enforcement

Funded by the European Union. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the CERV Programme. Neither the European Union nor the granting authority can be held responsible for them.

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