European Data Protection Supervisor (EDPS) – CJEU Judgment (European Union, 2025)

The EDPS brought an appeal against an order of the General Court ([https://curia.europa.eu/juris/document/document.jsf?text=&docid=277141&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1 T 578/22]) which ruled that an action for annulment brought by the European Data Protection Supervisor (EDPS) against Articles 74(a) and 74(b) of [https://eur-lex.europa.eu/eli/reg/2016/794/oj/eng Regulation (EU) 2016/794] as amended by [https://eur-lex.europa.eu/eli/reg/2022/991/oj/eng Regulation (EU) 2022/991] was inadmissible. The General Court had found that the EDPS did not enjoy the locus standi enjoyed by Member States and on certain EU Institutions as in [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263(2)-(3) TFEU], and may only challenge the validity of the contested provision if they fulfil the conditions laid down [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263(4) TFEU]. The EDPS had claimed that the contested provisions had the effect of retroactively legalising certain practices of the European Union Agency for Law Enforcement Cooperation (Europol) in the field of data protection, against which the EDPS had found its decision of 3 January 2022. The provisions confer on Member States the possibility to retroactively authorise Europol to process large data sets which have already been shared with Europol prior to the entry into force of the amending Regulation. This, the EDPS claimed, impacted their independence. In their appeal, the EDPS argued that the General Court should have recognised their right to legal standing to challenge the contested decision, irrespective of the requirements of [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263 TFEU]. The failure to do so, they argued, would deprive an independent supervisory authority, within the meaning of Article 8(3) of the Charter, of the right to proceedings before a court to protect institutional balance. The EDPS relied on the judgment in Parliament v Council in support of this, a case which concerned a situation whereby the Parliament was left with no remedy which enabled it to protect its independence. The EDPS also submitted a further ground of appeal, arguing that the General Court had erred in their finding that the EDPS was not directly concerned by the contested provisions, as required in [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263 TFEU], paragraph four. The Parliament and Council, supported by the Commission and French government, argued that the ground of appeal should be dismissed on the basis that the EDPS is not entitled to bring such an action for dismissal except under the general condition under [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263 TFEU], paragraph 4, whereby a challenge can be brought against an act only where it is addressed to that natural or legal person and it is of direct and individual concern to them. Article 263, paragraphs two & three In relation to the main ground of appeal, the AG opined that the EDPS did not have standing under the second and third paragraphs of [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263 TFEU]. The AG distinguished the present facts from those in Parliament v Council, finding that the dicta in that judgment referred to the institutional balance in relation to the distribution of powers “among the different Union institutions”. A Union institution, the AG highlighted, is defined by reference to a closed list in [https://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF Article 13(1) TEU]. The AG further distinguished the present case from Parliament v Council by noting that in that judgment, the Parliament left with only “ineffective or uncertain” legal remedies available to it. That was not the case here, as evidenced by the EDPS’s assertion that they fulfil the requirements in Article 263, paragraph four. The AG highlighted the inherent contradiction in the EDPS simultaneously arguing that only “ineffective or uncertain” legal remedies are available but also that they fulfil the requirements of Article 263, paragraphs two & three. Article 263, paragraph four In relation to the fourth paragraph of [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12012E/TXT:en:PDF Article 263 TFEU], the AG found that the EDPS does fulfil the criteria. The AG noted that the General Court had erred in their determination of whether the disputed measure is of “direct concern” to the EDPS by focusing on the substance of the contested measure, as opposed to the admissibility of the action. The criteria for determining “direct concern” are that the contested measure affects the body’s legal position and that no discretion is left to addressees who must implement it. In relation to the first criterion, the General Court had reasoned that the contested provisions amend the legislation which the EDPS is responsible for monitoring, not its own powers. The General Court had also ruled that the retroactive nature of the provisions was not likely to undermine the EDPS’ independence. The AG, however, noted that all that is required for a successful ruling on admissibility is the possibility of the undermining of the EDPS’ independence. The AG accepted that the disputed provisions are specifically aimed at counteracting a final decision which was taken by the EDPS, thus concluding that their legal position was affected. In relation to the second criterion, the General Court had focused on the margin of discretion afforded to Europol under the contested provisions. By contrast, and in light of the finding that the EDPS was directly affected by the contested provisions, the AG focused on the margin of discretion afforded to the EDPS by the contested provision, of which there was none. Without examining the substantive arguments on the contested provisions forwarded by the parties, the AG concluded that the EDPS has locus standi to bring proceedings before the EU courts in respect of a decision specifically aimed at neutralising a position previously taken by the body. The AG thus proposed that the Court of Justice allow the appeal, set aside the order of the General Court in [https://curia.europa.eu/juris/document/document.jsf?text=&docid=277141&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1 T 578/22], and refer the case back the General Court to give judgment on the substance of the issues raised. TBD