Papers by Francesca Tassinari
Revista General de Derecho Europeo, 2024
Under the Maastricht Treaty, the introduction of data protection rules in EU freedom, security, a... more Under the Maastricht Treaty, the introduction of data protection rules in EU freedom, security, and justice instruments was justified by the pillars structure. A new EU competence regulating personal data protection and its free movement enabled overcoming the reticence about framing the processing activities for police and judicial cooperation in criminal matters. Despite adopting the law enforcement directive, Europol maintained a distinct regulation until regulation 2022/991 aligned its mandate with the EU data protection regulation (EUDPR). These amendments faced the European Data Protection Supervisor’s criticism for departing from the horizontal standards set down in the EUDPR, Chapter IX. This paper highlights legal uncertainty over fragmented legal frameworks on personal data protection in the EU and clarifies their relationships, stressing the importance of coherence among Union policies, while taking the Europol’s big data challenge episode under scrutiny.
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La Ley Unión Europea 111, 2023
Union agencies represent a step toward the integration of the European Union’s (EU) shared compet... more Union agencies represent a step toward the integration of the European Union’s (EU) shared competences where both the Member States» authorities and the Union’s staff collaborate for their implementation. Their institutionalisation requires the delegation of executive powers into a new body’s hands in full respect of the EU Court of Justice’s (CJEU) jurisprudence. The European Union Agency for the Operational Management of Large‐Scale IT Systems in the Area of Freedom, Security, and Justice (eu‐LISA) has been delegated the implementation of freedom, security, and justice Large‐Scale IT systems as well as their forthcoming interoperability. Despite the progressive enhancement of eu‐LISA’s mandate also, but not only, by Regulation (EU) 2018/1726, and the impact that the latter has on people’s fundamental rights, this agency has risen little attention among scholars. This paper analyses the institutionalisation of the EU’s operational competence in the management of Large‐Scale IT systems and their interoperability under eu‐ LISA according to the (revisited) Meroni jurisprudence and the EU data protection framework. The main purpose is to assess whether, in the accomplishment of its tasks, eu‐LISA’s activities might go beyond the limits imposed by the founding Treaties and the resulting EU secondary legislation so that recommendations can be made to shape its mandate.
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Revista de Derecho Comunitario Europeo, 2023
The current paper summarises case law and conventional rules underpinning the exercise of the Eur... more The current paper summarises case law and conventional rules underpinning the exercise of the European Union (EU)'s external (implied) competences under Article 16(2) of the Treaty on the Functioning of the EU (TFEU). Article 16(2) TFEU empowers the EU to adopt rules on the protection of individuals whose personal data are processed and on the free movement of such data. The rules adopted on this legal basis could trigger the AETR/ERTA affectation criterion codified under Article 3(2) of the TFEU, turning an EU internal shared competence into an external exclusive competence. Our analysis argues that, despite the Union's data protection legislation in force, the EU is conferred an external (implied) shared/concurrent competence based on Article 16(2) TFEU. For this reason, negotiations to accede to the Council of Europe's Convention 108+ were mixed.
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PEACE & SECURITY – PAIX ET SÉCURITÉ INTERNATIONALES, 2021
EU data protection Law allows the transfer of personal data to third countries and international ... more EU data protection Law allows the transfer of personal data to third countries and international organisations only when the European protection standards are met. This condition demands for the externalisation of the EU legal framework to ensure the flow of information in all sectors. Morocco has been moving towards the EU data protection principles for trade purposes, though it has not reached an equivalent level of protection as required by Article 44 General Data Protection Regulation (GDPR). As a result, the exchange of personal data from the EU to Morocco is based on less guarantors means as far as the individuals’ fundamental rights are concerned. Concretely, the operational activity conducted by the European Border and Coast Guard to return irregular migrants is founded on the derogative clause of «important reasons of public interest». This article maintains that the approximation of Moroccan law to the continental one is an indispensable means to fairly manage migration flows. For this purpose, the EU not only promotes high data protection standards, but it also outsources its IT model enclosed in the Interoperability Regulations, no. 817 and 818 of 2019.
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Diritti Umani e Diritto Internazionale, 2022
The regime on transborder data flows set down in the European Union (EU) data protection acquis p... more The regime on transborder data flows set down in the European Union (EU) data protection acquis provides for a variety of tools legitimising the transfer of personal data toward third countries and international organisations. Specifically, it addresses the following legal aspects: adequacy decisions, appropriate safeguards and derogation clauses.
So far, the relationship between adequacy decisions and international agreements concluded by the EU and/or its Member States has not been clarified from a legal perspective. This leaves the choice of one instrument or another at the mercy of the co-legislators. This analysis examines the interrelationship between the EU’s treaty-making power based on external (implied) competence on the protection of personal data and the free movement of such data – namely Article 16 of the Treaty of the Functioning of the EU (TFEU) – and the European Commission’s implementing powers, which is exercised through the adoption of adequacy decisions.
The aim is to explain the adequacy decision/legally binding (enforceable) instrument interconnection. This could lead to limiting the discretion of the co-legislators. In this respect, the theory on implied powers applicable to international organisations and the relevant case law of the Court of Justice of the EU are duly taken into account.
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Revista de Derecho Comunitario Europeo, 69, 683-703., 2021
On October 6, 2020, the CJEU re-examined the transposition of the Council Directive 2011/16/EU, o... more On October 6, 2020, the CJEU re-examined the transposition of the Council Directive 2011/16/EU, of 15 February 2011, by the Luxembourg Law of 25 Novem- ber 2014 on administrative cooperation in the taxation field in the light of Article 47 of the Charter of Fundamental Rights of the European Union. In particular, Article 6 of the national Law allows the Luxembourg tax administration to issue an order for the disclosure of information, including personal data, under penalty. In contrast to its previous ruling Berlioz, the Court now incorporates in its analysis the new legal framework adopted by the EU in the field of data protection and, in particular, the General Data Protection Regulation (GDPR). In the latter, the system of protection granted to the data subject is deployed by means of a sui generis system of remedies for which various administrative bodies plus a judicial one are responsible. However, in its reasoning, the High Court does not guarantee the right to appeal against the disclosure order neither to the taxpayer/data subject nor to third parties affected by that order. In the light of the guarantees provided for in the GDPR, a critique of the CJEU’s ruling is elaborated on the basis of the consideration of the fundamental right to the protection of personal data enshrined in Article 8 of the Charter of Fundamen- tal Rights of the European Union.
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Cuadernos de Derecho Transnacional, 2019
The Italian Law n. 47 of 2017 on dispositions upon protection measures of foreign unaccompanied m... more The Italian Law n. 47 of 2017 on dispositions upon protection measures of foreign unaccompanied minors, represents the first normative text, which contemplates, in a uniform way, the protection of unaccompanied minors in the EU. On one side, it establishes a multidisciplinary procee- ding for the identification of the minor and for the determination of his/her minor age (art. 5). On the other, it stand out the legal figure of a «volunteer guardian», institution that protect unaccompanied minors who arrive at the Italian territory (art. 11). However, the lack of coordination among Member States threats the practice efficacy of those legal provisions, which coercive force is confined through the Italian territory. We discuss upon the need of harmonizing the different states’ practices through a legislative intervention of the EU.
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Teoría&Derecho, 2018
This article analyses the difficult interpretation and application of the fundamental right to an... more This article analyses the difficult interpretation and application of the fundamental right to an effective remedy in the juridical framework of Directive 2013/32/EU of the European Parliament and of the council of 26 June 2013, on common procedures for granting and withdrawing international protection. The Directive clearly explicates that any no European citizen foreign who stays in the European Union territory, has the right to: access to the proceedings established in order to seek international protection; have procedural guarantees sufficient for fallowing the whole procedure in each stages and, if necessary, appeal a negative decision before the judge or the tribunal (vid. whereas n. 25). On the contrary, the right to stay in the member State’s territory, competent to analyses his/her request, is not absolutely guaranteed. The European Union legislator, therefore, indirectly justifies the execution of “premature” orders of devolution and expulsion. The primer consequence of this legal gap is a breach of art. 13 of the European Convention on Human Rights. For these reasons, the right to an effective remedy stands out as the protagonist of the recent European Court of Human Rights’ jurisprudence. That is proved by its last sentence condemning Spain for having returned a Malaysian national and a foreign person, originating in Ivory Coast, who had crossed irregularly the frontier between Morocco and Spain in Melilla town (judgment N.D. and N.T v. Spain).
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Conference Presentations by Francesca Tassinari
ADiM-Doctoral & Postdoctoral Colloquium - Lampedusa, 2024
Regulations (EU) 817 and 818 of 2019 establish a framework for the interoperability between the E... more Regulations (EU) 817 and 818 of 2019 establish a framework for the interoperability between the European Union's (EU) information systems in the fields of borders, visa, police and judicial cooperation, asylum, and migration. In concrete terms, interoperability is implementing four new components that will be incorporated into the infrastructures of the six underlying large-scale IT systems. These components are the European Search Portal (ESP), the Common Identity Repository (CIR), the shared Biometric Matching Service (sBMS), and the Multiple-Identity Detector (MID). This paper aims to shed light on the MID, the functioning of which has been suggested of integrating Artificial Intelligence (AI) features during our PhD studies already. Specifically, we will inspect the impact of the AI Act (AIA) on its entry into operation assuming that the MID fits in the regulation of General-Purpose AI (GPAI) systems (or models) which might represent a risk according to the AIA approach.
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Workshop on secondary use of health data: challenges in building the European health data space - Bilbao, 2024
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XXX International Congress on Law and Human Genome - Bilbao, 2024
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ADiM-IntoME Migration Conference: Immigration and Public Power - Viterbo, 2024
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I workshop of young researchers AEDEUR - Madrid, 2024
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Workshop on Europol: data protection and big data for effective police cooperation - Bilbao 2024
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Flexible Query and Answering Systems (FQAS) 15th Int. Conference – Palma de Mallorca 2023
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Conference on the international impact of EU actions on intergenerational equity between environm... more Conference on the international impact of EU actions on intergenerational equity between environmental and social policies, Bari, 16 September 2022
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From 27 June to 8 July 2022 I attended the 18th Migration Summer School in Florence at the Europe... more From 27 June to 8 July 2022 I attended the 18th Migration Summer School in Florence at the European University Institute. In it, I had the opportunity to preview my Ph.D. research project that is entitled "The external reach of the interoperability of large-scale IT systems in the AFSJ". If you are interested to learn more about it, you can contact me bilaterally.
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ADiM Youbg Researchers Lab, 2022
The European Union Regulations 2019/817 and 2019/818 establish a framework for interoperability b... more The European Union Regulations 2019/817 and 2019/818 establish a framework for interoperability between information systems in the areas of borders, visas, police and judicial cooperation, asylum and migration, namely: the Entry/Exit System (EES); the Visa Information System (VIS); the European Travel Information and Authorisation System (ETIAS); Eurodac; the Schengen Information System (SIS) and the European Criminal Records Information System on third-country nationals (ECRIS-TCN). This contribution analyses the content and the objectives of these Regulations in order to show that their scope extends beyond the borders of the European Union. It will focus on Article 20 of Regulations 2019/817 and 2019/818 which, unlike the impact assessment proposed by the European Commission, does not limit its scope to a delimited territorial area.
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AEPDIRI XXVIII, 2019
The policy for managing migration flows in the EU, based on the proliferation of biometric identi... more The policy for managing migration flows in the EU, based on the proliferation of biometric identification mechanisms and the massive processing of data on migrants - regular and irregular - together with cooperation with third countries - of origin and transit - may violate the fundamental human right to leave any country, including their own, and return to their country of origin.
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Odysseus Summer School, 2020
PhD research project on the Interoperability of Large-Scale IT systems of the EU. The presentatio... more PhD research project on the Interoperability of Large-Scale IT systems of the EU. The presentation wanted to depict the state of play of my research project while introducing the main goals of Interoperability. I have analysed Interoperability in the light of the EU legal framework and the safeguards to the individuals' fundamental rights, especially the rights to a private life and to the protection of personal data (Arts. 7 and 8 of the Charter of Fundamental Rights of the EU). Some provisional conclusions were advances on which I receives the feedback of the honourable panel of the Odysseus Summer School.
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Papers by Francesca Tassinari
So far, the relationship between adequacy decisions and international agreements concluded by the EU and/or its Member States has not been clarified from a legal perspective. This leaves the choice of one instrument or another at the mercy of the co-legislators. This analysis examines the interrelationship between the EU’s treaty-making power based on external (implied) competence on the protection of personal data and the free movement of such data – namely Article 16 of the Treaty of the Functioning of the EU (TFEU) – and the European Commission’s implementing powers, which is exercised through the adoption of adequacy decisions.
The aim is to explain the adequacy decision/legally binding (enforceable) instrument interconnection. This could lead to limiting the discretion of the co-legislators. In this respect, the theory on implied powers applicable to international organisations and the relevant case law of the Court of Justice of the EU are duly taken into account.
Conference Presentations by Francesca Tassinari
So far, the relationship between adequacy decisions and international agreements concluded by the EU and/or its Member States has not been clarified from a legal perspective. This leaves the choice of one instrument or another at the mercy of the co-legislators. This analysis examines the interrelationship between the EU’s treaty-making power based on external (implied) competence on the protection of personal data and the free movement of such data – namely Article 16 of the Treaty of the Functioning of the EU (TFEU) – and the European Commission’s implementing powers, which is exercised through the adoption of adequacy decisions.
The aim is to explain the adequacy decision/legally binding (enforceable) instrument interconnection. This could lead to limiting the discretion of the co-legislators. In this respect, the theory on implied powers applicable to international organisations and the relevant case law of the Court of Justice of the EU are duly taken into account.