4 ms·

I am not sure this is even required. A (German) legal court order could also be used across the EU as a case law.

rambambram 3y ago
Care to explain? In my legal career - which is now years behind me - I've never heard of, say, a Dutch court picking case law from Germany and make it applicable to a Dutch case.
- K5EiS 3y ago
  Not sure if this is applicable, but it looks like it may be possible? https://commission.europa.eu/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/mutual-recognition-judgments_en https://commission.europa.eu/law/cross-border-cases/judicial...
  - 1116574 3y ago
    This talks about foreign countries applying & enforcing your countries court orders (within EU). I don't think it can be stretched to include case law in your new case. You could try that in court since the base gdpr is the same, but EU law implementations still differ.
- HelloNurse 3y ago
  GDPR is a different law per country, not one law for the whole Union. A lawyer could argue that the law in their country is supposed to work like the law of another country because both are GDPR, not directly appeal to the authority of a foreign court.
  - rambambram 3y ago
    One thing that I did remember from my legal career was that lawyers could always argue literally everything. ;)
    - vanderZwan 3y ago
      That unironically sounds like a minimum requirement for being a good lawyer.
  - darkclouds 3y ago
    [dead]
  - jampekka 3y ago
    GDPR is an EU regulation which means that it is one law for the whole union. EU regulations supersedes even constitutions of member countries. An EU directive means that countries have to put a law in their own books. Don't know though how different court judgements are interpreted. I'd guess it would have to be an EU-court judgement for it to bind other courts. In most EU countries only high/supreme court rulings set a precedent anyway.
    - chmod775 3y ago
      > EU regulations supersedes even constitutions of member countries. On paper that is the idea politicians had, but they don't always have the final say in practice. For instance Germany's Federal Constitutional Court reserved themselves the right to make decisions superseding EU regulations, however re-affirming the authority of the European Court of Justice "in the general case", since it is compatible with Basic Law for the Federal Republic of Germany. Neither court is explicitly considered to be higher and their stance is cooperative. So far, as far as I know, no EU regulation was struck down in Germany, only parts of various laws implementing directives. https://de.wikipedia.org/wiki/Maastricht-Urteil https://de.wikipedia.org/wiki/Maastricht-Urteil
    - M2Ys4U 3y ago
      >Don't know though how different court judgements are interpreted. I'd guess it would have to be an EU-court judgement for it to bind other courts. If there is a contested interpretation of EU law then the lower courts of a member state MAY refer a question (or questions) to the CJEU to resolve the issue. In the case of the highest courts (where there can be no appeal) they MUST make a referral to the CJEU. These referrals also aren't "appeals" as such, either, but are designed to answer the questions in such a way that the member states' courts can resolve the case with an authoritative (and consistent) interpretation of EU law.
mfalcao 3y ago
Germany is not a common law country and neither are any other EU countries. Higher court decisions (which I don’t think is the case here) can set jurisprudence but it’s not the same thing as in a common law system. Also national court decisions do not apply to other member states.
- MattHeard 3y ago
  A lot of courts use rulings from other countries where the cases are similar. Any interpretation by the Berlin regional court that GDPR implies that DNT should be treated as a GDPR opt-out should be easily adopted by courts in other countries deciding similar cases.
  - mfalcao 3y ago
    I’d have to read this specific decision but my opinion is that while the GDPR says the user can refuse consent “by automated means” it doesn’t specify what those means are, thus making it quite hard to follow, enforce and therefore likely that other courts will decide differently on similar cases. E.g. would my own “X-Tracking-Is-Stupid: don’t track me” header be valid as refusing consent? What if I add it as a query parameter in the URL? And so on - DNT is not special in the eyes of the law.
    - ZiiS 3y ago
      DNT is both common practice and a documented standard; the law will take both these into account in judging it vs `X-Tracking-Is-Stupid`.
      - mfalcao 3y ago
        I disagree that it’s common practice or standard. The W3C never even standardized it, mainly because of low adoption: https://github.com/w3c/dnt/commit/5d85d6c3d116b5eb29fddc69352a77d87dfd2310 https://github.com/w3c/dnt/commit/5d85d6c3d116b5eb29fddc6935...
- roomey 3y ago

Care to explain? In my legal career - which is now years behind me - I've never heard of, say, a Dutch court picking case law from Germany and make it applicable to a Dutch case.

K5EiS 3y ago
Not sure if this is applicable, but it looks like it may be possible? https://commission.europa.eu/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/mutual-recognition-judgments_en https://commission.europa.eu/law/cross-border-cases/judicial...
- 1116574 3y ago
  This talks about foreign countries applying & enforcing your countries court orders (within EU). I don't think it can be stretched to include case law in your new case. You could try that in court since the base gdpr is the same, but EU law implementations still differ.
HelloNurse 3y ago
GDPR is a different law per country, not one law for the whole Union. A lawyer could argue that the law in their country is supposed to work like the law of another country because both are GDPR, not directly appeal to the authority of a foreign court.
- rambambram 3y ago
  One thing that I did remember from my legal career was that lawyers could always argue literally everything. ;)
  - vanderZwan 3y ago
    That unironically sounds like a minimum requirement for being a good lawyer.
- darkclouds 3y ago
  [dead]
- jampekka 3y ago
  GDPR is an EU regulation which means that it is one law for the whole union. EU regulations supersedes even constitutions of member countries. An EU directive means that countries have to put a law in their own books. Don't know though how different court judgements are interpreted. I'd guess it would have to be an EU-court judgement for it to bind other courts. In most EU countries only high/supreme court rulings set a precedent anyway.
  - chmod775 3y ago
    > EU regulations supersedes even constitutions of member countries. On paper that is the idea politicians had, but they don't always have the final say in practice. For instance Germany's Federal Constitutional Court reserved themselves the right to make decisions superseding EU regulations, however re-affirming the authority of the European Court of Justice "in the general case", since it is compatible with Basic Law for the Federal Republic of Germany. Neither court is explicitly considered to be higher and their stance is cooperative. So far, as far as I know, no EU regulation was struck down in Germany, only parts of various laws implementing directives. https://de.wikipedia.org/wiki/Maastricht-Urteil https://de.wikipedia.org/wiki/Maastricht-Urteil
  - M2Ys4U 3y ago
    >Don't know though how different court judgements are interpreted. I'd guess it would have to be an EU-court judgement for it to bind other courts. If there is a contested interpretation of EU law then the lower courts of a member state MAY refer a question (or questions) to the CJEU to resolve the issue. In the case of the highest courts (where there can be no appeal) they MUST make a referral to the CJEU. These referrals also aren't "appeals" as such, either, but are designed to answer the questions in such a way that the member states' courts can resolve the case with an authoritative (and consistent) interpretation of EU law.

mfalcao 3y ago

Germany is not a common law country and neither are any other EU countries. Higher court decisions (which I don’t think is the case here) can set jurisprudence but it’s not the same thing as in a common law system. Also national court decisions do not apply to other member states.

MattHeard 3y ago
A lot of courts use rulings from other countries where the cases are similar. Any interpretation by the Berlin regional court that GDPR implies that DNT should be treated as a GDPR opt-out should be easily adopted by courts in other countries deciding similar cases.
- mfalcao 3y ago
  I’d have to read this specific decision but my opinion is that while the GDPR says the user can refuse consent “by automated means” it doesn’t specify what those means are, thus making it quite hard to follow, enforce and therefore likely that other courts will decide differently on similar cases. E.g. would my own “X-Tracking-Is-Stupid: don’t track me” header be valid as refusing consent? What if I add it as a query parameter in the URL? And so on - DNT is not special in the eyes of the law.
  - ZiiS 3y ago
    DNT is both common practice and a documented standard; the law will take both these into account in judging it vs `X-Tracking-Is-Stupid`.
    - mfalcao 3y ago
      I disagree that it’s common practice or standard. The W3C never even standardized it, mainly because of low adoption: https://github.com/w3c/dnt/commit/5d85d6c3d116b5eb29fddc69352a77d87dfd2310 https://github.com/w3c/dnt/commit/5d85d6c3d116b5eb29fddc6935...
roomey 3y ago