Legal Studies Research Paper Series Vol. 14, No. 1

The Faculty has published Volume 14 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

David Erdos: The Court of Justice’s Data Protection Case Law Deepens: Exploring Digi on Purpose and Storage Limitation and Koalitsia on the Scope of the GDPR and DPA Powers Including Vis-à-Vis the Media (15/2022)

This piece explores the filling out of the Court of Justice’s data protection jurisprudence within two recent judgments: C-77/21 Digi and C-306/21 Koalitsia. It is found that Digi significantly adds to the Court’s interpretation of the crucial purpose principle by establishing a strong expectation that purposes will be clearly stated and that if repurposing occurs then a concrete, logical and sufficiently close link with the initial purpose will be maintained. Other factors within the compatibility test are conceptualised through the prism of legitimate expectations. C-306/21 Koalitsia is also significant as it confirms not only broad scope of the GDPR itself but of a DPA’s powers including to establish rules of general application even in sensitive areas, where media freedom of expression in stake and (on the reasoning) notwithstanding that a Member State has (as is its right under Article 6(4) of the GDPR) itself set out rules for processing in furtherance of a task carried out in the public interest or in the exercise of official authority.

David Erdos: Towards Effective Supervisory Oversight? Analysing UK Regulatory Enforcement of Data Protection and Electronic Privacy Rights and the Government’s Statutory Reform Plans (16/2022)

This paper finds that although the (UK) GDPR mandates strong enforcement and a prioritisation of this by the regulator including through the handling of data subject complaints, severe limitations exist in practice. Indeed, in 2021-22 the Information Commissioner’s Office (ICO) did not serve a single GDPR enforcement notice, secured no criminal convictions and issued only 4 GDPR fines totalling just £633k. The Tribunal has removed any substantive bite to the individual order to progress complaints remedy and the DCMS Committee has failed to provide effective holistic scrutiny. There is a case for some of the legislative reforms now proposed including reconstituting the ICO as a corporate board and increasing transparency. However, others risk providing a de jure entrenchment of the ICO’s positioning away from being a comprehensive upholder of core data protection rights. None directly address the serious challenges present here but a two-fold approach would do so. The order to progress complaints should police the appropriateness of the ICO’s substantive as well as procedural response and not-for-profit representative complaints should be permitted even without the mandate of data subjects in order to encourage well-argued, strategically important cases. Second, and at least as importantly, the Equality and Human Rights Commission should be obliged to periodically provide holistic scrutiny of the ICO’s enforcement track-record from a human rights perspective within which data protection rights must ultimately sit.

Shona Stark & Raffael N Fasel: How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence (1/2023)

In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament did not have the power to legislate for a second referendum on Scottish independence ("Indyref2") absent an enabling Order by the UK Government under section 30 of the Scotland Act 1998. With the Scottish Government claiming a mandate for Indyref2 but Holyrood having no power to pass legislation facilitating it, and no section 30 Order forthcoming from the UK Government, alternative pathways to Indyref2 are being investigated. In this article, we examine two such potential pathways - a plebiscitary election and an unauthorised referendum - through the lens of constituent power. We argue that both pathways are theoretically feasible when one accepts (as we argue) that the Scottish people are the bearers of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.

Markus Gehring: EU Constitutional Aims and External Relations - Legal Consequences of Climate Provisions in EU Trade Accords (2/2022)

This article explores the importance of EU constitutional objectives and their influence over external relations law and policy by analysing how the EU’s aim to promote sustainable development, including by combatting climate change, is becoming an essential element of EU contributions to the development of international economic law. In particular, it examines the importance of significant commitments on climate change in EU trade treaties, and evaluates the legal consequences of this inclusion for EU and international law.

Constitutional aims of the EU, such as the rule of law, democracy and sustainable development, have long interactionally influenced EU domestic policy and external relations. In a manner similar to constitutional objectives in the Member States, the EU aims internationally to contribute to ‘sustainable development of the Earth’ and ‘free and fair trade’ (Art. 3.5 TEU). These aims are listed as equal though perhaps conflicting objectives, and were traditionally pursued separately through different fora in EU external relations. Currently, a new aspect of the constitutional objective of sustainable development, namely the commitment to combat global climate change (Art. 191 TFEU) is being addressed across EU policy and institutions and is particularly reflected in EU external relations. Obligations on climate change are increasingly evident not just in the EU’s environmental policy and cooperation, including through the rapid ratification of and attempts to strengthen implementation and compliance with the Paris Agreement, but also in other economic relationships of the EU across the common market and beyond. While sustainable development has been an objective of the EU’s international trade agreements since 1994, efforts to address climate change originally appeared almost as an afterthought in these agreements. This article documents a fundamental shift in the EU’s external relations through the meaningful inclusion of cooperation on climate change in the EU’s trade and investment agreements, and provides an analysis of the legal consequences. It argues that including global response to climate action as an essential element in a bilateral or inter-regional economic relationship changes the nature of that relationship, in turn reinforcing the EU’s own constitutional sustainable development aim.

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