THE EUROJUST JOINT SUPERVISORY BODY'S CONTRIBUTIONS TO THE DEVELOPMENT OF PROCEEDINGS BEFORE EU BOARDS OF APPEAL.

• Author: Tracol, Xavier

The European idea is . . . the slow-ripened fruit of a more elevated way of thinking. (1) I. INTRODUCTION

The Joint Supervisory Body of Eurojust examines appeals lodged by data subjects against decisions of Eurojust on the processing of their own personal data. It must objectively determine facts and make findings on the basis of those facts to render its decisions. Its actions may in consequence remedy a situation and affect the legal rights and duties of parties to the proceedings. (2)

The nature of the Joint Supervisory Body is specialised since it supervises the protection of personal data in the specific area of judicial co-operation in criminal matters. Regarding its role, the Joint Supervisory Body is entrusted with second-tier, last fact-finding, and final decisionmaking with a remedial function. (3) Its appeal decisions involve the determination of disputes between data subjects and Eurojust as a body of the EU.

2. THE LEGAL NATURE OF THE JOINT SUPERVISORY BODY

   Like the Boards of Appeal of both the Community Plant Variety Office (4) and the EU Intellectual Property Office, (5) the Joint Supervisory Body forms an integral part of Eurojust which means that it does not have its own legal personality pursuant to the Eurojust Decision. (6) The Joint Supervisory Body is, however, above Eurojust in the organisational structure.

   The case law of the Court of Justice to determine whether a body of the EU may be characterised as quasi-judicial is well established. The Court of Justice takes into account a non-exhaustive list of factors such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law, and whether it is independent. (7) Applying this non-exhaustive list of factors to the Joint Supervisory Body,

   * it is established by law, (8)

   * it is permanent, (9)

   * its jurisdiction is compulsory because data subjects may appeal against the decisions of Eurojust on the processing of their own personal data only before the Joint Supervisory Body, (10)

   * its procedure is inter partes since the appellant and Eurojust both make submissions before the Joint Supervisory Body,

   * the Joint Supervisory Body applies rules of law, and

   * the Joint Supervisory Body is independent of Eurojust, (11) just as the Boards of Appeal of the EUIPO are independent of the EUIPO itself. (12)

   The Joint Supervisory Body is therefore a quasi-judicial body of the EU, (13) just as the Boards of Appeal of the EUIPO are quasi-judicial bodies. (14) This implies that the Joint Supervisory Body plays the role of a Board of Appeal with procedures and powers that resemble those of a court.

3. COMPOSITION OF THE JOINT SUPERVISORY BODY

   The composition of Boards of Appeal depends on the particular tasks of each. In the case of the Joint Supervisory Body, the Eurojust Decision distinguishes between appointees and permanent members.

   1. Appointees to the Joint Supervisory Body

      The Eurojust Decision provides that each Member State must appoint for at least three years a judge who is not a national member of Eurojust or "if its constitutional or national system so requires a person holding an office giving him sufficient independence." (15)

   2. Permanent Members of the Joint Supervisory Body

      The Joint Supervisory Body is itself composed of three permanent members. (16) Their function as members is a part-time occupation. Like members of, for instance, the Community Plant Variety Office Board of Appeal, they must juggle their primary professional activities with their functions as members of the Joint Supervisory Body. In addition, members of the Joint Supervisory Body work pro bono which ensures that no budgetary reason would impede its independence. (17)

      The composition of the Joint Supervisory Body must remain identical for the duration of an appeal procedure even if the permanent members have reached the end of their terms of office before it concludes. (18) The permanent member in his or her third year of mandate after elections chairs the Joint Supervisory Body. (19)

      1. The Joint Supervisory Body Should Assist in Specifying Criteria for Assignment to Boards of Appeal

      1. Substantial Experience as Appellate Lawyers

         Substantial experience should be the main criterion of assignment to Boards of Appeal in light of the specificities of the judicial technique and of appeal proceedings. In practice, members of Boards of Appeal are likely to be experienced appeal lawyers although this background is not legally required. The Eurojust Decision contains general prescriptions on the composition of the Joint Supervisory Body. Members of the Joint Supervisory Body are merely required to be judges or members with an equal level of independence. (20)

         As of this writing, the Chairperson of the Joint Supervisory Body is a Presiding Judge of a Chamber at the Court of Appeal of Luxembourg, member of the Constitutional Court of Luxembourg, and Data Protection Officer of the Court of Appeal. Another is a judge in The Hague Criminal Court of Appeal. The third is a professor of administrative law at the University of Ljubljana whose field of expertise includes the law of personal data protection. (21) It is therefore striking to see that the majority of the Joint Supervisory Body is not only composed of appeal lawyers, but appeal judges. The fact that the Joint Supervisory Body is mainly composed of experts--persons who have or are deemed or claimed to have "extensive skill or knowledge in a particular field" (22) and are "part of a wider group consisting of persons holding similar expertise" (23) --with judicial experience corresponds to the specific needs of Eurojust. Indeed, this is to be expected, as Eurojust processes personal data coming from domestic judicial authorities that goes back to them afterwards. (24)

      2. Balance Between Domestic Legal Systems

         The assignment process should also include criteria designed to ensure that members of Boards of Appeal gained their substantial professional experience in a diversity of domestic legal systems. A variety of legal cultures in its members' professional backgrounds encourages and facilitates the recourse to comparative law if need be. Members of Boards of Appeal may then seek guidance and inspiration in their own domestic legal systems or in other domestic legal systems with which they are also familiar. (25) Although this diversity in professional backgrounds is not legally required, it is desirable. For instance, current members of the Joint Supervisory Body come from Slovenia, Luxembourg, and the Netherlands, where the legal systems substantially differ. (26)

         The Joint Supervisory Body's rules of procedure provide that

         [i]f no member of the Member State from which the personal data that form the object of the appeal originate is represented in the Joint Supervisory Body, the person appointed by this Member State in accordance with Article 23(1) to (3) of the Eurojust Decision shall act as ad hoc judge in the Joint Supervisory Body for the duration of the examination of this appeal. (27) This provision has been implemented only once. An ad hoc judge was appointed in accordance with its provisions for the duration of the case. (28)

      3. Mastery of Substantive Area and Technical Knowledge

         The composition of Boards of Appeal should also depend on matching candidates with each board's selected jurisdiction and the technical knowledge that its substantive specialisation requires. (29) The specialised composition of Boards of Appeal positively impacts the quality of their review and decisionmaking powers. (30) For instance, the specific jurisdiction of the Joint Supervisory Body deals with the compliance by Eurojust with the applicable provisions on the protection of personal data. (31) In practice, its current chairperson is the Data Protection Officer of the Court of Appeal of Luxembourg whilst another member of the Joint Supervisory Body was a Commissioner and Vice-President of the Dutch Data Protection Authority. (32) The Joint Supervisory Body thus has the technical skills required to perform its functions.

4. PROCEDURE BEFORE THE JOINT SUPERVISORY BODY

   The procedure before the Joint Supervisory Body is simple, effective, quick, and inexpensive. A data subject who requests a second assessment of his or her case may lodge an appeal against a decision of Eurojust before the Joint Supervisory Body within thirty days of receiving Eurojust's decision. (33)

   1. Establishment of a Screening Mechanism

      Boards of Appeal like the Joint Supervisory Body should consider the admissibility of appeals and the grounds of appeal filed by parties at the beginning of the appeal procedure. This sort of screening may contribute to procedural economy and the efficient functioning of the Boards of Appeal. As one Board of Appeal has noted, "[appeal proceedings ... are not an opportunity simply to reiterate the many, and sometimes abstruse, scientific points previously discussed and addressed during the course" (34) of the proceedings that led to the impugned decision. If Boards of Appeal are composed of more than two members, a Bench of at least two members of the Board of Appeal can be provided with the power and authority to rule on the admissibility of appeals and grounds of appeal before the substance of any appeal is considered. For instance, the Joint Supervisory Body's rules of procedure require appellants to outline their grounds of appeal. (35) The Joint Supervisory Body initially considers the admissibility of the appeal and rules on it. (36) The Joint Supervisory Body may find that the appeal is partly admissible. (37)

      The advantages of an initial screening mechanism are fourfold:

      * At least two members of a Board of Appeal rule on the admissibility of appeals and the grounds of appeals without mobilising all the members of that Board;

      * The collegiality of the decision is preserved since more than a...