Category: 3. Fundamental rights – Charter

STRASBOURG : The CIA’s abduction and extrajudicial transfer to Egypt of the imam Abu Omar infringed the applicants’ rights under the Convention

 

The judgment which has just been issued, resulting from the unanimous convergence of the Chamber’s seven judges, declares that the Italian state has violated art. 3 of the ECHR, not just by cooperating in Abu Omar’s kidnapping and his rendition to the Egyptian authorities, which exposed him to subsequent tortures; but also, and most importantly, insofar as it prevented the investigations undertaken by the Milan prosecutors’ office and the trial which were subsequently celebrated from ending naturally into the punishment of the defendants who were deemed responsible.

The reasons for the most important violation among those ascertained in Strasbourg (and it is a very long list) lie in the government’s, Constitutional Court’s and the former President of the Republic behaviour. These institutions have been respectively held responsible for the following reasons:

– insofar as the government is concerned, for its decision to apply state secrecy in the criminal trials to information that was already widely known to the public, evidently for the only purpose of preventing several defendants from being punished (see points 268 and 272 of the sentence), as well as for its later decision not to request -except for a single case- the extradition of the convicted US nationals;

– insofar as the Constitutional Court is concerned, for establishing through the judgments rendered in this case the prevalence of the state secrecy over the public interests pursued by the criminal justice system and, more generally, over the protection of the victims’ fundamental rights;

– insofar as the President of the Republic is concerned, for his decision to grant pardon to three convicts, including the one who had received the heaviest sentence because of his key role in the operation.

Worth to be mentioned here are the passages where the Court “pays homage to the national judges, who have done everything they could to try to establish the truth” (para. 265), and where it stresses the “great quality of the Italian investigators’ and judges’ work” (para. 269). All this has, unfortunately, not prevented the entire matter from ending in the impunity, in pratice, of all those found to be responsible, in contrast to the procedural obligations arising from the Convention.

This is a new unfortunate chapter for Italy in Strasbourg, in spite of the important recognition -as it had already happened in the Cestaro judgment, concerning the case of the Diaz school [at the Genoa G8 in 2001]- of the quality of the work done by our Judiciary for the defence of everybody’s fundamental rights, innocent parties and culprits alike.

Francesco VIGANO’

 

 

NOTA BENE : THIS IS A EUROPEAN COURT OF HUMAN RIGHTS PRESS RELEASE (emphasis are added) EDC

In today’s Chamber judgment1 in the case of Nasr and Ghali v. Italy (application no. 44883/09) the European Court of Human Rights held, unanimously, that there had been:

– with regard to Mr Nasr:

  • a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights,
  • a violation of Article 5 (right to liberty and security) of the European Convention,
  • a violation of Article 8 (right to respect for private and family life) and
  • a violation of Article 13 (right to an effective remedy) read in conjunction with Articles 3, 5 and 8

– with regard to Ms Ghali:

  • a violation of Article 3 (prohibition of torture and inhuman or degrading treatment),
  • a violation of Article 8 (right to respect for private and family life) and
  • a violation of Article 13 (right to an effective remedy) read in conjunction with Articles 3 and 8

The case concerned an instance of extrajudicial transfer (or “extraordinary rendition”), namely the abduction by CIA agents, with the cooperation of Italian officials, of the Egyptian imam Abu Omar, who had been granted political asylum in Italy, and his subsequent transfer to Egypt, where he was held in secret for several months.

Having regard to all the evidence in the case, the Court found it established that the Italian authorities were aware that the applicant had been a victim of an extraordinary rendition operation which had begun with his abduction in Italy and had continued with his transfer abroad.

The Court had already held in previous cases (El-Masri v. “The former Yugoslav Republic of Macedonia” [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014) that the treatment of “high-value detainees” for the purposes of the CIA’s “extraordinary rendition” programme was to be classified as torture within the meaning of Article 3 of the Convention.

In the present case the Court held that the legitimate principle of “State secrecy” had clearly been applied by the Italian executive in order to ensure that those responsible did not have to answer for their actions. The investigation and trial had not led to the punishment of those responsible, who had therefore ultimately been granted impunity.

Principal facts

The first applicant is Osama Mustafa Hassan Nasr, also known as Abu Omar, who was born in 1963. The second applicant is Nabila Ghali, who was born in 1968. Both are Egyptian nationals. Mr Nasr, member of the group Jama’a al-Islamiya – an Islamist movement regarded by the Egyptian government as a terrorist organisation – had lived in Italy since 1998. He became an imam and settled in Milan in July 2000. He was granted political asylum in February 2001 and married Ms Ghali in October of that year.

Mr Nasr was suspected, among other offences, of conspiracy to commit international terrorist acts, and his links to fundamentalist networks were investigated by the Milan public prosecutor’s office. The investigations concluded in June 2005 when the investigating judge made an order for Mr Nasr’s pre-trial detention. On 6 December 2013 the Milan District Court convicted Mr Nasr of membership of a terrorist organisation.

On 17 February 2003, while he was walking down a street in Milan, Mr Nasr was abducted and taken to the Aviano air base operated by USAFE (United States Air Forces in Europe), where he was put on a plane bound for the Ramstein US air base in Germany. From there he was flown in a military aircraft to Cairo. On his arrival he was interrogated by the Egyptian intelligence services about his activities in Italy, his family and his trips abroad. Mr Nasr was detained in secret until 19 April 2004 in cramped and unhygienic cells. He was taken out of his cell at regular intervals and subjected to interrogation sessions during which he was ill-treated and tortured.

On 19 April 2004 Mr Nasr was released. He maintained that he had been released because he had given statements in accordance with the instructions he had received and on condition that he did not leave Alexandria and remained silent about his experiences in prison. In spite of this condition, Mr Nasr telephoned his wife to let her know that he was safe. He also submitted a statement to the Milan public prosecutor’s office in which he described his abduction and torture. Approximately 20 days after his release, Mr Nasr was rearrested and detained. He was released on 12 February 2007 without charge but was prohibited from leaving Egypt.

On 20 February 2003 Ms Ghali had reported her husband’s disappearance to the police. The Milan public prosecutor’s office immediately started an investigation into abduction by a person or persons unknown. The Milan police department dealing with special operations and terrorism (the “Digos”) was put in charge of the investigation. In February 2005 it submitted a report on the investigation to the public prosecutor’s office. All the information obtained in the investigation confirmed Mr Nasr’s version of events with regard to his abduction and his transfer to the Aviano US air base and subsequently to Cairo. It also established that 19 US nationals had been involved in the events, including members of the United States diplomatic and consular corps in Italy. The investigators also found that the CIA chief in Milan at the time, Robert Seldon Lady, had played a key role in the events.

On 23 March 2005 the public prosecutor requested the pre-trial detention of 19 US nationals, including Mr Lady, who were suspected of involvement in planning and carrying out the abduction. The Milan investigating judge ordered the pre-trial detention of a further three US nationals. All 22 were declared “fugitives”. In November and December 2005 the prosecutor in charge of the investigation requested the principal public prosecutor to ask the Ministry of Justice to seek the extradition of the accused on the basis of a bilateral agreement with the United States and to request Interpol to initiate an international search for them. On 12 April 2006 the Minister of Justice informed the prosecuting authorities that he had decided not to seek the extradition of the 22 accused US nationals or to have an international wanted notice issued concerning them.

The second phase of the investigation related to the involvement of Italian nationals, including State agents. During the investigation it transpired that two senior officials of the SISMi (the Italian military intelligence agency) had been aware of the CIA’s plan to abduct Mr Nasr and of possible SISMi involvement. A journalist, Mr Farina, was also implicated, having allegedly attempted to lay false trails for the investigators at the request of SISMi agents.

In July 2006 the Prime Minister stated that the information and documents requested by the public prosecutor’s office were covered by State secrecy and that the conditions for lifting that secrecy were not met. In a judgment of 18 March 2009 the Constitutional Court held that the interests protected by State secrecy took precedence over any other interests guaranteed by the Constitution, and pointed out that the executive was invested with discretionary powers to assess the need for secrecy in order to protect those interests. The Constitutional Court specified that these powers were exempt from review, including by the Constitutional Court, and emphasised that it was not its task to examine the reasons for having recourse to State secrecy. Numerous items of evidence in the ongoing proceedings were therefore declared confidential and unusable.

On 4 November 2009 the Milan District Court delivered a judgment in which it found that Mr Nasr’s abduction had been planned and carried out by CIA operatives on the basis of a decision taken at political level; that the abduction had been carried out without the knowledge of the Italian authorities also engaged in investigating Mr Nasr at that time; and that the fact that authorisation had been given by very senior CIA officials suggested that the operation had been staged with the knowledge or even the tacit consent of the Italian authorities, although it had not been possible to further investigate the evidence existing in that regard for reasons of State secrecy.

Lastly, 22 CIA operatives and high-ranking officials, and one US army officer, were convicted in absentia of Mr Nasr’s abduction and were given prison sentences of between six and nine years. Two members of the SISMi were found guilty of obstructing the investigation and sentenced to three years’ imprisonment. The convictions of the former head of the SISMi and his deputy, and those of the three former SISMi members, were quashed by the Court of Cassation on grounds of State secrecy. The US nationals were also ordered to pay damages to the applicants in an amount to be determined in civil proceedings. The District Court provisionally awarded one million euros (EUR) to Mr Nasr and EUR 500,000 to Ms Ghali. The applicants have received no compensation to date, nor have the Italian authorities sought the extradition of the convicted US nationals.

Complaints, procedure and composition of the Court

Relying on Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention, Mr Nasr complained of his abduction, in which the Italian authorities had been involved, of the ill-treatment to which he had been subjected during his transfer and detention, of the fact that those responsible had been granted impunity owing to the application of State secrecy, and of the fact that the sentences imposed on the convicted US nationals had not been enforced because of the refusal of the Italian authorities to request their extradition. Lastly, both applicants alleged, among other violations, a breach of Article 8 (right to respect for private and family life) in that Mr Nasr’s abduction and detention had resulted in their forced separation for over five years.

The application was lodged with the European Court of Human Rights on 6 August 2009.

Judgment was given by a Chamber of seven judges, composed as follows:

  • George Nicolaou (Cyprus), President,
  • Guido Raimondi (Italy),
  • Päivi Hirvelä (Finland),
  • Ledi Bianku (Albania),
  • Nona Tsotsoria (Georgia),
  • Paul Mahoney (the United Kingdom),
  • Krzysztof Wojtyczek (Poland),
  • and Françoise Elens-Passos, Section Registrar.

 

Decision of the Court

Article 3 (prohibition of torture and inhuman or degrading treatment)

Regarding the investigation and trial

The Court began by observing that the domestic courts had conducted a detailed investigation that had enabled them to reconstruct the events. The evidence that had ultimately been disregarded by the courts on the ground that the Constitutional Court had found it to be covered by State secrecy had been sufficient to convict the accused. The Court went on to note that the information implicating the SISMi agents had been widely circulated in the press and on the Internet; it therefore found it difficult to imagine how invoking State secrecy had been apt to preserve the confidentiality of the events once the information in question had been disclosed. In the Court’s view, the executive’s decision to apply State secrecy to information that was already widely known to the public had resulted in the SISMi agents avoiding conviction.

As to the convicted US agents, the Court noted that the Government had acknowledged never having sought their extradition. According to the Government, they had issued European arrest warrants and a single international arrest warrant against Mr Lady, which had yielded no results. Furthermore, the President of the Republic had pardoned three of the convicted persons, including Mr Lady, who had received a heavier sentence because of the extent of his responsibility in the extraordinary rendition operation.

The Court noted that in spite of the efforts of the Italian investigators and judges, which had identified the persons responsible and secured their convictions, the latter had remained ineffective owing to the attitude of the executive. The legitimate principle of “State secrecy” had clearly been applied in order to ensure that those responsible did not have to answer for their actions. Accordingly, the investigation and trial had not led to the punishment of those responsible, who had ultimately been granted impunity.

The Court therefore took the view that the domestic investigation had not satisfied the requirements of the Convention. Accordingly, there had been a violation of the procedural aspect of Article 3 of the Convention.

Regarding the inhuman and degrading treatment

It was beyond doubt that Mr Nasr’s abduction had entailed the use of techniques that must have caused him emotional and psychological distress. His ensuing detention, including his transfer by plane to an unknown destination, had undoubtedly placed Mr Nasr in a situation of complete vulnerability, and he had undeniably lived in a permanent state of anxiety owing to his uncertainty about his fate. In fact, in his statement to the Milan public prosecutor Mr Nasr had given details of the circumstances surrounding his abduction and his detention in Egypt and the treatment to which he had been subjected, and in particular the violent interrogation sessions. The Court had previously held that similar treatment of “high-value detainees” for the purposes of the CIA’s extraordinary rendition programme was to be classified as torture within the meaning of Article 3 of the Convention2.

In view of the fact that the Italian authorities had been aware of the extraordinary rendition operation carried out in the context of the CIA’s high-value detainee programme, and had actively cooperated with the CIA during the initial phase of the operation – Mr Nasr’s abduction and his transfer abroad – the Court considered that those authorities had known or should have known that this would place him at a real risk of ill-treatment. In those circumstances, the likelihood of a violation of Article 3 had been particularly high and should have been considered as inherent in the Mr Nasr’s transfer. Accordingly, by allowing the CIA to transfer Mr Nasr outside the country, the Italian authorities had exposed him to a serious and foreseeable risk of ill-treatment and of conditions of detention contrary to Article 3 of the Convention.

Under Articles 1 and 3 of the Convention the Italian authorities had had a duty to take the appropriate measures to ensure that the persons within their jurisdiction were not subjected to torture or to inhuman or degrading treatment or punishment. This had not been the case, and the respondent State had to be considered directly responsible for the violation of the first applicant’s rights under this head, as its agents had failed to take the measures that would have been necessary in the circumstances of the case to prevent this situation from occurring. The State’s responsibility in this regard was all the greater since Mr Nasr had been granted refugee status in Italy.

In the Court’s view, by allowing the US authorities to abduct the first applicant, the Italian authorities had knowingly exposed him to a real risk of treatment contrary to Article 3 of the Convention. There had therefore been a violation of the substantive aspect of Article 3 of the Convention.

Regarding the violation of Article 3 in the case of Ms Ghali

As acknowledged by the Italian courts, Ms Ghali had suffered significant non-pecuniary damage as a result of her husband’s disappearance, especially on account of the sudden interruption of their married life and the damage to her psychological well-being and that of her husband. The unjustified conduct of the Italian authorities and the suffering caused to Ms Ghali as a result had been regarded by the Italian courts as sufficiently serious to warrant an award of 500,000 euros in damages.

Furthermore, the uncertainty, doubt and apprehension felt by Ms Ghali over a lengthy and continuous period had caused her severe mental suffering and distress. Like Mr Nasr’s disappearance, the prolonged period during which Ms Ghali had been left without any news of her husband was attributable to the domestic authorities. In the Court’s view, Ms Ghali had been subjected to treatment proscribed by Article 3. With regard to the investigation and trial, as the Court had already found that these had not led to the punishment of those responsible, there had also been a violation of Article 3 in Ms Ghali’s case.

Article 5 (right to liberty and security)

The unlawful nature of Mr Nasr’s detention had been established by the domestic courts, which found that he had been subjected from the outset to unacknowledged detention in complete disregard of the guarantees enshrined in Article 5 of the Convention; this constituted a particularly serious violation of his right to liberty and security. The detention of terrorist suspects under the programme of renditions set up by the US authorities had already been found in similar cases to be arbitrary3.

The Court had already found under Article 3 that Italy had been aware of Mr Nasr’s transfer outside the country in the context of an extraordinary rendition and that the Italian authorities, by allowing the CIA to abduct Mr Nasr in order to transfer him to Egypt, had knowingly exposed him to a real risk of treatment contrary to Article 3. The Court maintained those findings and considered them to be applicable in the context of Article 5. It concluded that Italy’s responsibility was engaged with regard both to Mr Nasr’s abduction and to the entire period of detention following his handover to the US authorities. There had therefore been a violation of Article 5 of the Convention in that regard.

Article 8 (right to respect for private and family life)

In view of its findings concerning the responsibility of the respondent State under Articles 3 and 5 of the Convention, the Court took the view that the State’s actions and omissions also engaged its responsibility under Article 8 of the Convention. In the light of the facts as established, the Court considered that the interference with the first applicant’s exercise of his right to respect for his private and family life had not been “in accordance with the law”. There had therefore been a violation of Article 8 of the Convention.

The Court was of the view that Mr Nasr’s disappearance, which was attributable to the Italian authorities, also amounted to interference with Ms Ghali’s private and family life. As that interference had not been in accordance with the law, there had also been a violation of Article 8 of the Convention with regard to Ms Ghali.

Article 13 (right to an effective remedy) read in conjunction with Articles 3, 5 and 8

The Court had established that the investigation carried out by the national authorities – the police, the prosecuting authorities and the courts – had been deprived of its effectiveness by the executive’s decision to invoke State secrecy. The Court had demonstrated that the State’s responsibility was engaged on account of the violations of the applicants’ rights under Articles 3, 5 and 8 of the Convention.

In the Court’s view, the applicants should have been able to avail themselves of practical and effective remedies capable of leading to the identification and punishment of those responsible, to the establishment of the truth and to an award of compensation. In view of the circumstances already examined, the Court could not consider that the criminal proceedings had been effective within the meaning of Article 13 with regard to the complaints under Articles 3, 5 and 8.

As the Government themselves acknowledged, it had not been possible to use the evidence covered by State secrecy; likewise, a request for the extradition of the convicted US agents had proved futile. As to the civil consequences, the Court considered that, in view of the circumstances, any possibility for the applicants to obtain damages had been virtually ruled out.

There had therefore been a violation of Article 13 read in conjunction with Articles 3, 5 and 8 in Mr Nasr’s case and a violation of Article 13 read in conjunction with Articles 3 and 8 in the case of Ms Ghali.

Article 6 (right to a fair trial)

The Court considered that this complaint covered the same ground as the applicants’ complaint under the procedural limb of Article 3, in so far as it related only to one specific aspect of proceedings which the Court had already found not to satisfy the criterion of effectiveness for Convention purposes. The Court therefore deemed it unnecessary to examine this complaint separately under Article 6.

Article 41 (just satisfaction)

The Court held that Italy was to pay 70,000 euros (EUR) to Mr Nasr and EUR 15,000 to Ms Ghali in respect of non-pecuniary damage and EUR 30,000 to the applicants jointly in respect of costs and expenses.

NOTES

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

(2) El-Masri v. “The former Yugoslav Republic of Macedonia” [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014.

(3)  El-Masri v. “The former Yugoslav Republic of Macedonia” [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014.

The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader application of the Charter to national measures

STUDY FOR THE PETITION COMMITTEE OF THE EUROPEAN PARLIAMENT

(TO BE DEBATED AT  THE PUBLIC HEARING  “Taking Citizens’ concerns seriously: broadening the scope of the EU Charter on Fundamental Rights (Article 51)?“( 23 February 2016 – Room ASP A3G-2 – 9H00-12h30.

by  Eleanor  SPAVENTA 

EXECUTIVE SUMMARY

This analysis looks into the applicability of fundamental rights as enshrined in the EU Charter of Fundamental Rights (CFR) in the European Union legal order. It focuses on the limits imposed to the rights and freedoms declared by the CFR by its Article 51, which states that the Charter only applies to European Union Institutions and bodies and to the  Member States  only when  they  are  implementing  Union  law.

The scope of application of fundamental rights before the adoption of the Charter was progressively established and developed by the European Court of Justice through its evolving jurisprudence. Fundamental rights were declared as general principles of Community law protected by the Court (Stauder), as common constitutional traditions among the Member States (Internationale Handelsgesellshaft) and     enshrined in international treaties, such as the European Convention on Human Rights (ECHR) (Nold) and the ECtHR jurisprudence. The scope of application covered the acts of EC/EU institutions, the implementation of EU law by Member States (Wachauf), including when they act within the field of EU law by limiting free movement rights (ERT, Carpenter). This jurisprudence has been particularly courageous in expanding the protection provided to  EU citizens in  relation to  fundamental rights.

The Charter was elaborated and adopted with the aim of codifying the Court jurisprudence and making the EU fundamental rights obligations more visible. At the same time, some Member States did not want the Charter to have effects that could potentially limit their competences by expanding in substance the field of application of EU law beyond EU powers. For this reason, a series of limits to the applicability of the Charter were inserted in the Charter itself, among which Article 51 CFR.

The CJEU jurisprudence shows that the Court has been receptive to this approach, adopting a narrow interpretation of the applicability of the CFR to national measures, on the basis of its  Article 51.

The analysis of the CJ EU case law shows that there is a varied application of EU fundamental rights to measures adopted by Member States: when a stronger interest of the EU is at stake (internal market; EU integration), the CFR is more likely to be applied also to national measures; when the Member State acts on the basis of EU co-ordination measures, the CFR applies (if at all) only in extreme cases; in all other cases, the CFR will most  likely not  apply.

The examination of the petitions tabled by citizens to the EP shows that citizens have high expectations in relation to the CFR and its application to measures adopted by the States allegedly infringing their fundamental rights. Having said that, the application of the CJ EU jurisprudence, as reflected in the Commission opinions on the selection of petitions analysed in this study, does not leave much margin of manoeuvre.

The Committee on Petitions seems to have mostly followed the Commission approach with a number of exceptions, notably on children rights, Greece austerity measures and some more recent petitions. The overall approach taken by the Commission on the petitions at stake seems justifiable to the author of this paper, with the exception of the petitions on the right  to  collective bargaining in  Greece. When looking into the interpretation of the CFR, the author believes that the approach taken   by the CJEU is dangerously restrictive and not warranted by Article 51,   for instance in relation to Union citizenship, the European Arrest Warrant or asylum cases.

The underlying notion that Member States guarantee an equivalent level of protection of fundamental rights is fallacious, especially given that there is very little that can be done at EU level to ensure that fundamental rights are guaranteed across the Member States.

A more courageous use of the CFR should be made for national measures falling within the scope of EU law, so to ensure that those instruments cannot be used to undermine fundamental rights guarantees.

Furthermore, EU fundamental rights should never be seen as instrumental to the achieving of the effectiveness and supremacy of EU law; rather they should be seen as a tool without which integration in certain areas might become impossible and/or undesirable. Hence, the Court should not refrain from its duties and clarify that EU rules that are premised on a certain degree of mutual trust amongst Member States as to compliance with fundamental rights at national level might become inapplicable (or invalid) if this alleged common standard of fundamental rights protection does not exist in practice.

This approach would be a powerful incentive for Member States to achieve a satisfactory level of fundamental rights protection and to take fundamental rights obligations more seriously.

It might also encourage the EU institutions to be more vociferous in their critique of fundamental rights failures at national level. And it would also serve the primary objective of protecting individuals from fundamental   rights violations committed by authorities  at  EU   or  national  level.

INTRODUCTION

The PETI committee requested the EP Policy Department for Citizens’ Rights and Constitutional Affairs to acquire an expert opinion on Article 51 of the EU CFR, with a particular view to assess the applicability of the CFR to acts of national authorities in relation to petitions received by the Committee. To achieve this aim, this research analyses the way the Court of Justice of the EU has interpreted Article 51 CFR in relation to national rules to then turn to an analysis of the petitions; it concludes by recalling arguments in favour and against a broad application of the Charter; it advocates a more courageous use of the Charter in those situations that are firmly within the scope of Union law, and in particular cases of co-ordination of national rules; and Union citizenship cases. The  report  is structured  as follows.

Section 1, The scope of application of EU fundamental rights before the Charter, provides a brief historical introduction on the situation before the adoption of the Charter. This is important since Article 51 CFR, and the Charter more generally, sought to codify the existing state of the law. This section also briefly recalls the debate surrounding EU fundamental rights and in particular the fear that the application of the latter might have a significant impact on national   sovereignty and regulatory autonomy.

Section 2, Article 51 Charter: its significance and its interpretation by the Court of Justice, examines the way Article 51 CFR has been interpreted in relation to acts of national authorities. It should be recalled that Article 51 CFR applies to Member States only when they implement Union Law. In particular it focuses on three lines of case law: Åkerberg Fransson, where a remote link with EU law was sufficient to trigger the Charter; McB, and N.S., where national acts giving effect to EU co-ordinating rules are subject to a lighter touch review (or no review); and cases in which the Charter did not apply, either for lack of a connection with EU law, or because of a restrictive interpretation of the Union citizenship  provisions.

The report concludes that there is a varied application of the Charter which depends on the area considered (stronger in internal market, weaker in other cases).

Furthermore, the interest in integration is taken into account; and so is the need to ensure the effectiveness and supremacy of Union law. In cases of co-ordination of national rules the presumption of uniform compliance with a minimum standard of fundamental rights protection by all Member States is paramount; and in Treaty cases the Court has retreated from a generous interpretation of fundamental rights, leaving the Union citizen (especially, but not only, if non  economically active)  particularly  vulnerable.

Section 3, The petitions to the EP and the Commission’s position, analyses a selection of petitions received by the PETI Committee where petitioners raised concerns in relation to alleged violations of the CFR, to assess the extent to which the Charter would have been applicable in the cases at issue. It divides the petitions in three categories: those where there is no discernible link with Union law; those where there might have been a potential link;  and  those  which  raise issues  in  relation  to the foundational   principles  of  the   EU.

Section 4, The dilemma of a broad or strict application of the Charter, highlights the policy and legal reasons in favour and against a broad interpretation of the Charter. It concludes advocating  a  more   consistent,  and   courageous,  use  of  the  Charter   in  cases  of  coordination  of  national   rules (Asylum,  EAW)   and  in  citizenship  cases  also   as  a  means   to   raise the  level   of protection  of fundamental  rights in  the territory  of  the  EU.

Continue reading “The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader application of the Charter to national measures”

The final UK renegotiation deal: immigration issues

MY COMMENTS : Steve PEERS contribution is, as always, focused, and legally outstanding. It is interesting to note that in case of positive result of the UK referendum  it will be up to the EP to decide if, to preserve the UK “special” status, substantial amendments to the EU legislation on freedom of movement should be adopted. However what is at stake is the principle of non discrimination between EU citizens as defined by art. 9 of the TEU according to which “..In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.”  

I do believe that in a “political” Union, worth its name and its former ambitions,  this should the objective of the negotiations  should had been to delete the existing protocols granting special status to some Countries and (their national Citizens) who become more “equal” than the others EU citizens.. However thanks to Mr Cameron it is now abundantly clear that our EU leaders are no more “Dwarfs on giant’s shoulders” but only short sighted political dwarfs… What is even more troubling is that, if the UK which has been for more than 40 years consistent with its initial position, other EU Countries, rhetoric statements taken apart,  have a much more ambiguous position towards the EU ( see France, Polonia, Hungary, Sweden, Finland and even Italy) and behave in a way incompatible with the idea of being part of the same family.

Emilio DE CAPITANI

 

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Saturday, 20 February 2016)

by Steve Peers*

So David Cameron has achieved his deal on the renegotiation of the UK’s EU membership (full text of that deal here). This is the first of a series of posts on the final deal – starting with the issue of ‘EU immigration’ (or, from the EU law point of view, the free movement of EU citizens). This builds on (and partly recycles) myearlier post on the EU immigration issues in the draft deal.

I will write later about the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (although see already my post on the legal form of the draft deal; my comments there won’t change much when I update them in light of the final deal). And see also Katarzyna Granat’s analysis of the ‘red card’ for national parliaments – again, the final text of the deal doesn’t differ from the draft here).

The deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘Decision’); a Statement of the Heads of State and Government (which consists of an agreed Council Decision); aDeclaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and four declarations by the Commission. Of these, Section D of the draft Decision and three of the Commission declarations relate to immigration issues. One of these Commission declarations (relating to child benefit exports) was added during the negotiation, while the text of Section D and another declaration (on the ‘emergency brake’ in in-work benefits) was amended. The other declaration (on so-called ‘abuse’ of free movement) was not changed.

While Section D contains some important attempts to clarify EU free movement law, the key feature of the deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) the Regulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States.

All three sets of amendments are to be proposed by the Commission as soon as the main Decision enters into effect. That will happen (see Section E of the Decision) as soon as the UK announces that it will remain a member of the EU – if, of course, the UK public vote to remain in the upcoming referendum. The deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the planned amendment to the citizens’ Directive, since that proposal is not referred to in the main Decision).

However, all three proposals will be subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, although the largest party (the European People’s Party, made up essentially of centre-right parties like Angela Merkel’s Christian Democrats) hasannounced that it supports the renegotiation deal in principle, subject to examination of the details. However, I offer some thoughts below about possible challenges to the legality of these laws if they are adopted.

Unlike some other parts of the deal (on the position of non-Eurozone states, and the exemption of the UK from ‘ever closer union’), there is no mention of future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. So the main impact of the deal in this area will come from the three legislative proposals, once adopted. Since those proposals will not be tabled or agreed until after the UK ‘Remain’ vote (if there is one), this means that the analysis of the details is necessarily somewhat speculative. There are some important points of detail that will only be clear once the legislation is proposed and approved. I flag up some of those finer points below.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the deal provides not for permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban. The Council will presumably act by the default voting rule in the Treaties: a qualified majority on a proposal from the Commission. That means no single Member State can veto the request to pull the brake. The final deal leaves vague the exact authorisation process which will apply in the Council, to avoid annoying the European Parliament (EP); but that detail will have to be addressed sooner or later. Certainly the EP will have to approve the legislation which sets up that process in the first place; the question is whether it would have a role deciding if the brake should be pulled.

A Commission declaration states the UK qualifies to pull this ban immediately, in particular because it did not apply transitional controls to workers from new Member States in 2004. However, there is nothing in the deal to suggest that Member States – who would have the final word – also agree. The restrictions would only to those who were ‘newly arriving for a period of seven years’, and would have to be phased out during that time. Again, the seven years matches the transitional period which the UK could have applied to control the numbers of workers from new Member States, back in 2004.

Several points of detail arise. First of all, after the seven years have expired, it’s not clear how much time would then have to pass before the brake could be applied again. Secondly, it will be important to clarify the meaning of those who are ‘newly arriving’. What about those who lived in the UK before, and are now returning here? How much time would they have had to spend in Poland (say) before they are considered ‘newly arriving’ again? Presumably the brake would not apply to those who are already here when the brake is pulled, but are not working at that time (due to youth, unemployment, childcare or illness) but who get work afterward.

Thirdly, it will be necessary to define how to calculate the four year period. It’s easy enough to apply it to those who begin work as soon as they (newly) arrive in the country, and who work for the full four years afterward. But what about those (a non-working spouse, or a teenager, for instance) who start work some time after they enter the country? What about those who start work, stop for whatever reason and then restart? What about those who start work during the brake period, then spend a year or so in Poland, then come back? And how can we be sure when exactly someone entered the country in the first place?

The final crucial point of detail is, obviously, the grounds on which the brake can be applied. According to the Decision, it would apply where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see myprior blog post for details), this would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it mightaccept that these plans do not violate the Treaties. But as EU law currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rules. There was a strong argument that the plan would have breached the Treaties, since in the case ofPinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the ‘conditions’ in the receiving State. This will only apply to ‘new claims made by EU workers in the host Member State’; but after 1 January 2020, this ‘may’ be extended to ‘existing claims already exported by EU workers’. This is clarified by the Commission declaration, which states that the ‘conditions’ refers to the ‘standard of living and level of child benefits’ in the child’s State of residence. The transitional rule, and the Commission declaration, were added during negotiations. It’s an open question whether this new law would breach the Treaties, since there is no case law on the point.

Several points of detail arise here. It’s explicit that the new rules will be optional, so Member States can still be more generous if they want to. There’s nothing to limit their application to the UK (although I will refer to the UK and Poland here, purely for the sake of readability). It’s not clear whether the rules will also apply to Britishcitizens who have children in other Member States; arguably the principle of non-discrimination will require that they do. It’s also not clear what happens to ‘mixed’ families of (say) British and Polish parents (or indeed step-parents). Will it depend on which parent is the worker? What if both are workers? What if that changes over time?

The transitional clause also raises issues. The Decision distinguishes between ‘new claims’ and ‘existing claims already exported by EU workers’. Presumably the new law will state a precise date at which claims can be regarded as ‘existing’ (say 1 January 2017). These must be existing exported claims, so if a child moves to Poland after 1 January 2017, or is born after that date and resides in Poland, then child benefits could be reduced, even if the worker is already in the UK. So if my estimated date is correct, anyone who is thinking about having a child, and who wants to avoid the application of these rules, had better get a move on. Perhaps this Easter will be the season of fertility even more than usual.

Finally, it should be noted that a challenge by the Commission to other aspects of UK payment of child benefit to EU citizens is still pending. The non-binding opinion of an Advocate-General argues in favour of the UK in this case (for a critical view, see Charlotte O’Brien’s analysis here). It wouldn’t surprise me if the Commission quietly withdrew this legal challenge. You read that here first.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in Alimanovic. Pure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field. It should be noted that another judgment by the Court of Justice on EU benefits issues is due next week.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State (the ‘host Member State’) and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK (the ‘home Member State’) with their family members, now invoking the free movement rights in the Treaties. This is known in practice (in the UK) as the ‘Surinder Singh route’, because of the name of the case which first established this principle. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their family members.

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good chance that it would have required not just a legislative amendment but a Treaty change.  (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement).

However, the deal does not go this far. The main Decision states that:

‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration then states that it will make a proposal to amend the citizens’ Directive:

‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State’s immigration law will apply to the third country national.’

That Declaration also states that the Commission will clarify that:

‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and

‘The concept of marriage of convenience – which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

It seems clear that these ‘clarifications’ will not be included in the legislative proposal, since the declaration later concludes (emphasis added):

‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the planned legislative amendments, then the guidelines which will provide ‘clarifications’. The amendments will exclude two separate categories of non-EU citizens from the scope of the citizens’ Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. For these people, national immigration law will apply.

The background to this proposal is CJEU case law. In 2003, in the judgment inAkrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement. Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled, seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the deal that limits its application to the UK. (One important point of detail is whether all Member States would be obliged to apply the new rules on ‘prior lawful residence’ and ‘marriage after entry of the EU citizen’, or whether they could choose to waive one or both of those rules. The EU citizens’ Directive already states that Member States can apply more liberal standards if they wish to).

Finally, the consequences of the rule will need to be clearer in the future legislative amendments. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment inMetock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competenceto regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

As for the ‘clarifications’ in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State. The definition of what constitutes a ‘sufficiently genuine’ move to another country is set out in the case law (three months’ stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from theTreaty. This line of case law does not accept that such movement between Member States is an ‘evasion’ of national law – as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a ‘marriage of convenience’ cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the ‘marriage of convenience’ concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the hostMember State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say, possibly based on the Commission’s ‘guidance’ (which might be issued before the new legislation is adopted) that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What does the renegotiation deal do? First of all, the Decision states that:

‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

To this end, the Commission declaration states that it will:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen’s conduct poses a “present” threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of “serious grounds of public policy or public security” and “imperative grounds of public security” [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here is as imminent as the proposal to amend the rules to create a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language in these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health. Put simply, a Member State can impose an entry ban where an EU citizen has been expelled due to criminality – but not where he or she has been expelled due to poverty.

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the Decision briefly refers to Cameron’s plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UK’s position for now.

Conclusion

The key point to remember about the renegotiation deal, particularly as regards EU immigration, is that it consists of different parts. The main deal takes the form of a Decision, which essentially clarifies EU law without amending it. According to CJEU case law (Rottmann), the Court is willing to take Decisions like these into account when interpreting EU law.

However, in the area of EU immigration, the other parts of the deal are more relevant: the intention to pass three new EU secondary laws. Those new laws will be a fully-fledged amendment to existing EU rules, not simply a clarification of it. While some points of detail remain to be worked out, it is clear from the deal that the Commission will make proposals in these areas, and all Member States (ie the Council) will support them. It remains to be seen whether the European Parliament will approve them, and whether the CJEU would accept challenges to their legality. My assessment of the Court’s likely response, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable. Of course, there’s no prior case law on these specific issues, and so we can’t be certain of the Court’s approach in advance.

Overall, as I concluded in the earlier post on the draft agreement, these changes, if they are all implemented as planned, will fall short of a fundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

Barnard & Peers: chapter 13

Photo credit: http://www.telegraph.co.uk
*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don’t represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.

Posted by Steve Peers at 01:35 15 comments:

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Labels: benefits, Brexit, child benefit, EU citizenship, EU referendum, EU reform, expulsion, family benefit, free movement of persons, tax credits, UK renegotiation

Thursday, 18 February 2016

Mutual trust – blind trust or general trust with exceptions? The CJEU hears key cases on the European Arrest Warrant

Henning Bang Fuglsang Madsen Sørensen, Associate Professor, Department of Law, University of Southern Denmark

Monday 15 February was a busy day in Luxembourg. The Court held a hearing in C-404/15, Aranyosi, which was lodged at the Court in July 2015. But the Court also received C-659/15, Caldararu, at 9 December 2015 under the ‘emergency’ PPU-procedure. The Court decided to join the two cases as they were submitted by the same court – Hanseatisches Oberlandesgericht in Bremen, Germany – and concerned the same issue – should surrender on a European Arrest Warrant be refused if there is reason to fear the wanted person will be exposed to inhumane prison conditions in the requesting state? So the hearing concerned both cases and it turned out to be a busy but also interesting day because the two cases touch upon the application of the principle of mutual recognition as the cornerstone of EU criminal law as recognized by recital 6 of the Framework Decision establishing the European Arrest Warrant.

During the day, the Court heard the submissions from the lawyers of Aranyosi and Caldararu, the referring judge from Bremen, 9 Member States (Germany, Ireland, Spain, France, Lithuania, Hungary, The Netherlands, Romania and UK) and of course the Commission.

But what was all the fuss about? Well, let us have a look at the two cases first. Then we will turn to the submissions of the Member States and the Commission.

The cases

Aranyosi is a young man, living with his parents in Bremen. He has a girlfriend in Germany, with whom he has a child. He was arrested in Bremen 14 January 2015 as Hungary had requested his surrender on a European Arrest Warrant. Aranyosi is suspected for two accounts of burglary. However, Aranyosi resisted the surrender, referring to reports from the Committee on the Prevention of Torture (CPT) and case law from the European Court of the Human Rights, which documented a massive over-crowding in Hungarian prisons to an extent that could be considered a violation of ECHR art. 3 (corresponding to Article 4 of the EU Charter of Fundamental Rights). The Bremen Court decided to ask the Luxembourg Court if it was possible to read article 1(3) of the EAW Framework Decision (the ‘human rights’ clause) as an opportunity to refuse the surrender in case of strong indications of detention conditions insufficient to satisfy ECHR art. 3. The Bremen Court also asked if it was possible to request assurances concerning the prison conditions from the requesting state before surrender was allowed. Due to Aranyosi’s connections with Bremen, the judge decided to release Aranyosi while the case was pending.

Caldararu is also a young man. He was sentenced to 8 months in prison by a court in Romania for driving without a driver’s license. The case was heard in absentia. However, Caldararu left Romania before the sentenced time could be served and Romania issued a European Arrest Warrant for Caldararu. He was arrested in Bremen, Germany, on 8 November 2015, and his surrender to Romania was then allowed on 20 November 2015. He refused however to consent to the surrender with reference to the detention conditions in Romania. The Bremen Court decided to keep Caldararu in custody as the Bremen Court also sent a request for a preliminary ruling in this case. The request was sent on 9 December 2015.

So, two cases from the same court, basically concerning the same question: Can a judge refuse surrender if it is feared that detention facilities in the requesting state are inadequate?

But the reply to these questions touches upon a number of arguments, and the day turned out to be very intense as these arguments involves fundamental rights, the principle of mutual recognition, the relationship between Member States and not least what to do if surrender is denied. The parties were far from a common understanding of how these arguments should be used, and the hearing turned out to be a very interesting and well-spent day in Luxembourg.

Let us have a look at some of the major arguments.

The first argument – mutual trust means blind trust!

One could argue that mutual trust means blind trust to such a degree that the executing Member State must execute the European Arrest Warrant without any checks for anything else other than the grounds for refusal to execute an EAW mentioned in Articles 3 and 4 of the Framework Decision (such as double jeopardy, or age of a child).

The Bremen judge of course opposed this view as this would make his request for a preliminary ruling obsolete.

Especially Spain supported this argument, saying that the evaluation of the protection of fundamental rights is a privilege for the court in the issuing State as the court in the executing State is not empowered to make abstract evaluations of the prison conditions in another Member State. The prior CJEU judgment inMelloni was mentioned as an example of a situation, where Spain was denied the possibility to make the surrender conditional upon specific guarantees. Spain had difficulties aligning the conclusions of Melloni with a possibility to make evaluations of foreign prison systems prior to deciding surrender and then perhaps condition the surrender on guarantees regarding detention conditions. Spain therefore held, that the executing State had to surrender unless Article 3 or 4 of the Framework Decision were applicable and it would then be for the courts of the requesting state to evaluate whether prison conditions would amount to a violation of ECHR art. 3 / Charter art. 4.

Lithuania presented a similar argument, arguing that the principle of mutual trust would fall apart if Member States were given the power to check each other in regard to prison conditions. Lithuania further referred to TEU art 7 (on the possible suspension of a Member State from the EU on human rights grounds) as the procedure prescribed by the treaties in case a Member State is found not to respect fundamental rights. Lithuania also expressed concern whether the issuing State would be able to make its arguments before the court in the executing State deemed the prison conditions in the issuing State insufficient in regards to fundamental rights, and it could lead to a situation where the issuing State would be denied the possibility to use the EAW as such. This would make it impossible to prosecute absconded criminals and would thus threaten the idea of AFSJ as such.

The remaining States together with the Commission were in opposition to Spain and Lithuania. The parties argued in general in favor of understanding mutual trust as a general trust in opposition to a blind trust. The Bremen judge reported his difficulties when reading about the prison conditions in Hungary, and how he had asked the German Government in vain to obtain guarantees concerning the prison conditions for Aranyosi. He argued that it would be unacceptable to demand that a judge should ignore obvious reasons to fear for violations of fundamental rights and the possibility of denying the execution of the EAW had to be present in such a situation. Being a judge himself, he called upon the Luxembourg judges not to put this burden on him.

The German Government along with Ireland, France, Hungary, The Netherlands, Romania, UK and the Commission presented various arguments in favor of understanding mutual trust as a general trust which only is rebuttable in very exceptional circumstances.

Germany argued that the executing state cannot be making assessments of the respect for fundamental rights in other Member States, except when under very exceptional circumstances. Such circumstances could be several reports from the Council of Europe, CPT, judgements from the ECtHR, reports from NGOs and even from the American Secretary of State. Germany further read recital 13 in the preamble together with art. 1(3) of the EU Framework Decision in such a way that a risk of violation of fundamental rights is a general reason for denying execution of the EAW in supplement to the specific reasons mentioned in Articles 3 and 4 of the law. Ireland supported this argument with a reference to recital 12, while Hungary supported the argument with reference to recital 10. The UK also argued in favor of reference also to recitals 5 and 6, together with recital 10, 12 and 13 and Article 1(2) and 1(3).

The Commission argued for the need of a balance between mutual trust and the protection of fundamental rights, requiring Member States to have a general trust in each other with a possibility to test the protection of fundamental rights if there seems to be a real risk for a violation of fundamental rights. The Commission found support for this in Art. 19(2) of the Charter (non-removal from a Member State to face torture et al), as the Commission supported the Bremen judge by finding it unacceptable to force a Member State to surrender to a known risk of violation of fundamental rights without taking action to protect fundamental rights. The Commission further stressed that if the principle of mutual recognition would prevail over the protection of fundamental rights, then a principle had been given more weight than fundamental rights. Fundamental rights, being a part of primary law and the reason for the Union as such, could not be set aside by a general principle within EU law.

When is the obligation to examine a potential risk triggered?

If detention facilities in the requesting Member State may be examined prior to the decision of surrender, then how much is needed for triggering such an examination?

The main question was whether an examination should be accepted only in case of systemic failures in the requesting state or whether an individual risk concerning the specific person should be enough. The first situation, where an examination only is acceptable in cases of systemic failures, correspond to the conclusions of the Luxembourg Court in the cases of N.S. (on the Dublin system in Greece). andMelloni, and also paragraphs 191-194 of Opinion 2/13 (on ECHR accession). The second situation corresponds to the conclusion of ECtHR in Soering (on extradition to ‘death row’ in the USA).

Germany, UK and The Netherlands argued in favor of the individual approach, exemplified by a person who may be kept under harsh detention conditions due to religion or sexual orientation. Ireland argued together with France, Romania and Hungary in favor of the systemic approach, and also stressing that the threshold that has to be met had to be set rather high in respect for the principle of mutual trust. Spain argued against both approaches, as Spain found the examination to be directed against the detention facilities of the requesting state and as such not covered by any of the terms. Lithuania referred to art 7 TEU as the correct method to handle suspicions concerning violation of fundamental rights in a Member State, and concluded on this basis that the examination conducted in the executing Member State should be limited to an examination of whether or not art. 7 had been activated in regards to the issuing Member State.

The Commission found it relevant to initiate an investigation if an individual risk were present.

The parties were thus split in half on the question of whether an examination was allowed only in case of systemic failures or whether the examination should be allowed based on the individual risk of the person wanted for surrender. The submissions of the Member States were however also influenced by the question of what to do if the examination leads to the conclusion of a present and relevant risk in case of surrender – should the requesting state be given the opportunity to eliminate the found risk through guarantees or should the surrender be conditioned upon guarantees? The position of the Member States on this issue will be reported below. First, we must turn our attention to how the Member States would examine a real and present danger of a violation of a fundamental right in case surrender is allowed.

How will the Member States examine a claimed risk of violation of fundamental rights?

The problem of how a court in one Member State can obtain information on the detention system in another Member State in order to establish whether or not these detention facilities may be seen as a violation of fundamental rights were also included in the submissions of the parties.

Germany referred to reports from the CPT and the Council of Europe, together with the case law of the ECtHR, reports from NGOs and even the American Secretary of State. Germany stressed that these sources had to be published within a reasonably short time before the national court was to decide on the question of surrender. The UK also supported the use of reports from international organs, the case law of the ECtHR, individual claims and testimonies and reports from national experts. Ireland and The Netherlands also argued for the use of reports from the CPT and the case law of the ECtHR, while France considered especially the case law of the ECtHR as relevant. Hungary elaborated on the fact that reports from the CPT are at least one year underway, while a judgement of the ECtHR refer to facts as they were at the time of the claimed violation. That could be several years prior to the judgement were handed down. These sources thus had to be used with great care.

Romania did not elaborate on the question of how to make an examination. Also Spain and Lithuania opposed the general idea of letting foreign courts examine domestic prison conditions, but did not elaborate on how this may be done in case the Luxembourg Court would allow it.

The Commission supported the use of the case law of ECtHR, reports from international organisations, statistics on the over-crowding of prisons in the requesting State and even any other relevant source. The Commission was thus in line with especially Germany and UK.


The importance of dialogue between Member States – the concept of guarantees

Several parties stressed the importance of dialogue between the requesting Member State and the executing Member States.

The Bremen judge, Germany and France argued in favour of giving the judge of the court in the executing Member State the possibility to call for guarantees from the issuing Member State. The guarantees would be able to remove the fear for a violation of fundamental rights, and the surrender should therefore be denied if the required guarantees were not provided.

Ireland and The Netherlands found no basis for refusing to surrender due to the lack of diplomatic guarantees. The executing Member State had to make its mind up whether or not there would be a real and present risk for a violation of fundamental rights and handle the request for surrender in accordance with this.

Spain argued against the use of guarantees, as the judge calling for the guarantees may be setting the criteria that has to be met before he or she will allow surrender. This would generate a risk of huge variations in the way the Member States use this possibility, and would therefore threaten the uniformity of Union Law. Lithuania also argued against the use of guarantees by elaborating on the fact that the guarantee is not worth much if the requesting Member State decides not to fulfill its obligations in accordance with the guarantee after the surrender has taken place.

Especially Hungary stressed the importance of Article 15(2) of the Framework Decision. If a Member State is afraid of surrendering due to the fear of violation of fundamental rights, then the two involved states must engage in a dialogue for the purpose of removing the reasons for this fear. Hungary saw the risk of violations as a specific and concrete problem, which could be handled with specific and concrete solutions. Such solutions could be alternative detention measures, a decision to keep the surrendered person in custody in another prison or perhaps show the executing court that the reasons are obsolete due to for instance the constructions of new prisons following e.g. a judgment from the ECtHR. This line of arguments was supported by the UK as well as Ireland and The Netherlands. These arguments were also supported by Romania by stating that the risk for a violation of fundamental rights may be real and present but nevertheless possible to eliminate in the specific case. The Commission also supported this view.

Especially Romania also raised another issue concerning equal treatment, as Romania mentioned that if certain inmates where kept under custody under more beneficial conditions due to guarantees while other inmates were kept in custody under normal conditions. Romania pointed to the simple fact that if prisoners with guarantees were to be given more space, then the remaining prisoners would have even less space. This motivated the referring judge to ask Romania, Germany and France to elaborate on this risk concerning unequal treatment. Romania found this risk to be non-acceptable, while France argued that the risk of unequal treatment were a less evil than the risk of violating fundamental rights. Germany stated, that Germany did not want unequal treatment, but appropriate prison conditions. The risk of unequal treatment was however the only way to respect the Soeringjudgment of the ECtHR.

Thus, there were different views on whether surrender could be conditioned upon guarantees or whether guarantees should be seen more as a dialogue comforting the executing judge in the removal of a risk of violation of fundamental rights. However, there seemed to be general consensus when it came to how guaranties should be issued, as the parties found this should be regulated in national law of the specific Member State.

The consequence of denying surrender

The last major issue touched upon by the parties was the question of what should happen if surrender were refused.

The Bremen judge explained how German law made it possible to let Germany continue the criminal proceedings if surrender was denied, but practical problems in regards to witnesses etc. made this theoretical possibility an illusion in real life. In regards to Aranyosi, a decision not to surrender would therefore in real life also be decision to discontinue the criminal proceedings. In regards to Caldararu, who was sentenced in Romania, a decision to not surrender could provide the basis for letting Caldararu serve the sentence in Germany, but this would also result in a number of practical problems as Caldararu only had stayed a very short time in Germany. He therefore does not speak the language nor would any initiatives to rehabilitate him into the German society have any likelihood for success.  So it was also questionable whether it would be relevant to transfer the sentence to Germany in the present case. The Bremen judge made it clear that it would not be satisfactory if a denial to surrender the sought person would mean crimes would go unpunished.

The German government shared this view, while France noted that it was for each Member State to decide whether they would let their courts have jurisdiction in cases in which surrender had been denied. Romania also made it clear, that it would be unacceptable if criminal activities were going un-punished because of a decision to deny surrender. If the executing Member State denies surrender, then the executing Member State must bear the responsibility to see justice fulfilled. Lithuania pointed to the fact that a decision not to surrender due to unsatisfactory detention facilities would in practice create areas within the AFSJ it which it would be impossible to punish crimes as the criminals would be able to commit their crimes in such areas and then flee to other parts of the AFSJ without risking surrendering afterwards.

A number of parties also underscored this as the major difference between asylum law and the test used in the N.S. case against criminal law and the test that may be used in the present cases. If the return of an asylum seeker is impossible, then the Member State in which the asylum seeker is at the moment will be able to process the application for asylum. It is of lesser importance for the asylum seeker whether one or the other Member State processes the application for asylum as asylum law is almost fully harmonized. The consequence of not surrendering a suspect in a criminal case could very well be that crimes would go unpunished, which is a rather different result and of course not acceptable.

What next?

The Advocate General promised to announce within 24 hours when his opinion will be submitted to the Court. The cases were heard on 15 February 2016 but the Curia-webpage still do not contain any new information by the end of the 17 February 2016. Nonetheless, Caldararu is a PPU-case as Caldararu is kept in custody, and we must therefore expect the opinion of the general advocate within few days. The decision of the Court will then be expected within a few weeks or perhaps a month, so the excitement will soon be released.

It seems apparent that especially Spain and Lithuania were very skeptical as to whether one Member State should be allowed to examine the detention facilities in another Member State at all. The other seven Member States seemed to find it appropriate to have the possibility in very exceptional circumstances. France, Romania and Hungary seemed to limit the possibility to cases with systemic problems, while the remaining Member States also wanted to be able to conduct an examination in cases with individual problems. Germany wanted to let the executing Member State demand guarantees from the issuing Member State so surrender could be denied if the requested guarantees were not delivered. The remaining Member States seemed to agree that the two Member States had to engage in a dialogue to establish whether there was a problem in the specific case at all and whether a problem could be solved by for instance alternative detention measures. It is also worth noticing the position of the Commission as a rather pragmatic approach, where the Commission supported the need to make investigations in even individual cases, using a variety of sources.

EU-US “Umbrella Agreement on Data Protection: Opinion of EDPS

EDPS (*) Preliminary Opinion Published HERE on 12 February 2016

(*) The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 41(2) of Regulation 45/2001 ‘With respect to the processing of personal data… for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to privacy, are respected by the Community institutions and bodies’, and ‘…for advising Community institutions and bodies and data subjects on all matters concerning the processing of personal data’. He was appointed in December 2014 together with Assistant Supervisor with the specific remit of being constructive and proactive. The EDPS published in March 2015 a five-year strategy setting out how he intends to implement this remit, and to be accountable for doing so.

This Opinion builds on the general obligation that international agreements concluded by the EU must comply with the provisions of the Treaty of the Functioning of the European Union (TFEU) and the respect for fundamental rights that stands at the core of EU law. In particular, the assessment is made so as to analyse the compliance of the content of the Umbrella Agreement with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union and Article 16 TFEU ensuring personal data protection.

EXECUTIVE SUMMARY

Investigating and prosecuting crime is a legitimate policy objective, and international cooperation including information exchange has become more important than ever. Until now, the EU has lacked a robust common framework in this area and so there are no consistent safeguards for individuals’ fundamental rights and freedoms. As the EDPS has long argued, the EU needs sustainable arrangements for sharing personal data with third countries for law enforcement purposes, fully compatible with the EU Treaties and the Charter of Fundamental Rights

Therefore, we welcome and actively support the efforts of the European Commission to reach a first ‘Umbrella Agreement’, with the US. This international law enforcement agreement aims at establishing for the first time data protection as the basis for information sharing. While we recognise that it is not possible to replicate entirely the terminology and definitions of EU law in an agreement with a third country, the safeguards for individuals must be clear and effective in order to fully comply with EU primary law.

The European Court of Justice in recent years has affirmed data protection principles including fairness, accuracy and relevance of information, independent oversight and individual rights of individuals These principles are as relevant for public bodies as they are for private companies, regardless of any formal EU adequacy finding with respect to third countries data protection safeguards; indeed they become all the more important considering the sensitivity of the data required for criminal investigation.

This Opinion aims to provide constructive and objective advice to the EU institutions as the Commission finalises this delicate task, with broad ramifications, not only for EU-US law enforcement cooperation but also for future international accords. The ‘Umbrella Agreement’ is separate from but has to be considered in conjunction with the recently announced EU-US ‘Privacy Shield’ on the transfer of personal information in the commercial environment. Further considerations may be necessary to analyse the interaction between these two instruments and the reform of the EU’s data protection framework.

Before the Agreement is submitted for the consent of the Parliament, we encourage the Parties to consider carefully significant developments since last September, when they signalled their intention to conclude the Agreement once the Judicial Redress Act is passed. Many safeguards already envisaged are welcome, but they should be reinforced, also in the light of the Schrems judgment in October invalidating the Safe Harbor Decision and the EU political agreement on data protection reform in December, which covers transfers and judicial and police cooperation.

The EDPS has identified three essential improvements which he recommends for the text to ensure compliance with the Charter and Article 16 of the Treaty:

* clarification that all the safeguards apply to all individuals, not only to EU nationals;

* ensuring judicial redress provisions are effective within the meaning of the Charter;

* clarification that transfers of sensitive data in bulk are not authorised.

The Opinion offers additional recommendations for clarification of the envisaged safeguards by way of an accompanying explanatory document. We remain at the disposal of the institutions for further advice and dialogue on this issue. 

Continue reading “EU-US “Umbrella Agreement on Data Protection: Opinion of EDPS”

BETTER…ADMINISTRATIVE MAKING AT EU LEVEL (when the European Parliament paves the way to an, almost reluctant, European Commission…).

Since years the European Parliament ask the European Commission to submit a formal legislative proposal framing the administrative activity of the European Union as foreseen by art 298 of the Treaty on the functioning of the European Union and by the European Charter of Fundamental Rights.

According to the former “In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration”.

Even more clearly the art 41 of the Charter (Right to good administration) states that :
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2.This right includes:
(a)the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b)the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c)the obligation of the administration to give reasons for its decisions.
3.Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.”

More than six year have past since the entry into force of the Treaty, in the meantime the EU administrative constellation has become even more complex with new agencies, authorities and networks but the European Commission has not yet considered that the time has come to bring some order in a domain which many have described as the “maquis” communautaire (instead of “aquis” communautaire..). This is even more appalling bearing in mind the increasing importance recognized also by the Court of Justice to the principle of good administration when assessing the legitimacy of the activity of the EU Member States or even of third countries. ..

It has then to be praised the fact that also in this legislature the Legal Affairs Committee (JURI) of the European Parliament has decided to ask to a group of eminent experts in this domain to write a full fledged legislative text which can “inspire” the European Commission. The full study and the text are accessible here .

Below the text of the draft legislative proposal as well as the first part of the study “The context and legal elements of a Proposal for a Regulation on the Administrative Procedure of the European Union’s institutions, bodies, offices and agencies” authored by Professors  Diana-Urania    Galetta,   Herwig   C.   H.   Hofmann,   Oriol  Mir Puigpelat and Jacques Ziller.

Emilio De Capitani

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Proposal for  a REGULATION OF THE   EUROPEAN PARLIAMENT AND OF THE COUNCIL on the  Administrative Procedure  of  the  European  Union’s  institutions, bodies,  offices  and  agencies

THE EUROPEAN   PARLIAMENT  AND  THE  COUNCIL OF  THE EUROPEAN UNION,
Having    regard    to    the    Treaty    on    the    Functioning    of   the    European    Union,   and    in    particular Article  298   thereof,
Having  regard  to  the proposal  from  the European  Commission,
After  transmission of  the draft legislative act  to  the national  parliaments,
Acting in accordance with  the  ordinary  legislative procedure, Whereas:
(1) With the development of the competences of the European Union, citizens are increasingly confronted with the Union’s institutions, bodies, offices and agencies, without  always having their procedural  rights adequately  protected.
(2) In a Union under the rule of law it is necessary to ensure that procedural rights and obligations are always adequately defined, developed and complied with. Citizens are entitled to expect a high level of transparency, efficiency, swift execution and responsiveness from the Union’s institutions, bodies, offices and agencies. Citizens are also entitled to receive adequate information regarding possibility to take any further  action  in the matter.
(3) The existing rules and principles on good administration are scattered across a wide variety of sources: primary law, secondary law, case-law of the Court of Justice of the European Union, soft law and unilateral commitments by the Union’s institutions.
(4) Over the years, the Union has developed an extensive number of sectoral administrative procedures, in the form of both binding provisions and soft law, without necessarily taking into account the overall coherence of the system. This complex variety of procedures has resulted in gaps and inconsistencies in these procedures.
(5) The fact that the Union lacks a coherent and comprehensive set of codified rules of administrative law makes it difficult for citizens to understand their administrative rights under  Union  law.
(6) In April 2000, the European Ombudsman proposed to the institutions a Code of Good Administrative Behaviour in the belief that the same code should apply to all Union institutions,  bodies,  offices   and   agencies.
(7) In its resolution of 6 September 2001, Parliament approved the European Ombudsman’s draft code with modifications and called on the Commission to submit a proposal for a regulation containing a Code of Good Administrative Behaviour based   on  Article  308  of the  Treaty establishing  the European Community.
(8) The existing internal codes of conduct subsequently adopted by the different institutions, mostly based on that Ombudsman’s Code, have a limited effect, differ from one   another  and  are  not   legally binding.
(9) The entry into force of the Treaty of Lisbon has provided the Union with the legal basis for the adoption of an Administrative Procedure Regulation. Article 298 of the Treaty on the Functioning of the European Union (TFEU) provides for the adoption of regulations to assure that in carrying out their mission, the institutions, bodies, offices and agencies of the Union have the support of an open, efficient and independent European administration. The entry into force of the Treaty of Lisbon also gave the Charter of Fundamental Rights of the European Union (“the Charter”) the  same  legal   value  as  the  Treaties.
(10) Title V (“Citizens’ Rights”) of the Charter enshrines the right to good administration in Article 41, which provides that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. Article 41 of the Charter further indicates, in a non-exhaustive way, some of the elements included in the definition of the right to good administration such as the right to be heard, the right of every person to have access to their file, the right to be given reasons for a decision of the administration and the possibility of claiming damages caused by the institutions and  its servants  in  the  performance  of their  duties,  and  language  rights.
(11) An efficient Union administration is essential for the public interest. An excess as well as a lack of rules and procedures can lead to maladministration, which may also result from the existence of contradictory, inconsistent or unclear rules and procedures.
(12) Properly structured and consistent administrative procedures support both an efficient administration and a proper enforcement of the right to good administration guaranteed  as a  general  principle  of  Union  law  and under Article  41 of  the Charter.
(13) In its Resolution of 15 January 2013 the European Parliament called for the adoption of a regulation on a European Law of Administrative Procedure to guarantee the right to good administration by means of an open, efficient and independent European administration. Establishing a common set of rules of administrative procedure at the level of the Union’s institutions, bodies, offices and agencies should enhance legal certainty, fill gaps in the Union legal system and should thereby contribute to compliance  with  the  rule  of law.
(14) The purpose of this Regulation is to establish a set of procedural rules which the Union’s administration should comply with when carrying out its administrative activities. These procedural rules aim at assuring both an open, efficient and independent administration and a proper enforcement of the right to good administration.
(15) In line with Article 298 TFEU this Regulation should not apply to the Member States’ administrations.. Furthermore, this Regulation should not apply to legislative procedures, judicial proceedings and procedures leading to the adoption of non-legislative acts directly based on the Treaties, delegated acts or implementing  acts.
(16) This Regulation should apply to the Union’s administration without prejudice to other Union’s legal acts which provide for specific administrative procedural rules. However, sector-specific administrative procedures are not fully coherent and complete. With a view to ensuring overall coherence in the administrative activities of the Union’s administration and full respect of the right to a good administration, legal acts providing for specific administrative procedural rules should, therefore, be interpreted in compliance with this Regulation and their gaps should be filled by the relevant provisions of this Regulation. This Regulation establishes rights and obligations as a default rule for all administrative procedures under Union law and therefore reduces the fragmentation of applicable procedural rules, which result from  sector-specific  legislation.
(17) The procedural administrative rules laid down in this Regulation aim at implementing the principles on good administration established in a large variety of legal sources in light of the case law of the Court of Justice of the European Union. Those principles are set out here below and their formulation should inspire the  interpretation   of  the  provisions  of   this   Regulation.
(18) The principle of the rule of law, as recalled in Article 2 of the Treaty on European Union (TEU), is the heart and soul of the Union’s values. In accordance with that principle, any action of the Union has to be based on the Treaties in compliance with the principle of conferral. Furthermore, the principle of legality, as a corollary to the rule of law, requires that activities of the Union’s administration are carried out in full  accordance with the law.
(19) Any legal act of Union law has to comply with the principle of proportionality. This requires any measure of the Union’s administration to be appropriate and necessary for meeting the objectives legitimately pursued by the measure in question: where there is a choice among several potentially appropriate measures, the least burdensome option has to be taken and any charges imposed by the administration not  be  disproportionate  to  the  aims  pursued.
(20) The right to good administration requires that administrative acts be taken by the Union’s administration pursuant to administrative procedures which guarantee impartiality,  fairness  and   timeliness.
(21) The right to good administration requires that any decision to initiate an administrative procedure be notified to the parties and provide the necessary information enabling them to exercise their rights during the administrative procedure. In duly justified and exceptional cases where the public interest so requires,  the  Union’s   administration   may  delay   or  omit   the  notification.
(22) When the administrative procedure is initiated upon application by a party, the right to good administration imposes a duty on the Union’s administration to acknowledge receipt of the application in writing. The acknowledgment of receipt should indicate the necessary information enabling the party to exercise his or her rights of defence during the administrative procedure. However, the Union’s administration should be entitled to reject pointless or abusive applications as they might  jeopardize  administrative  efficiency.
(23) For the purposes of legal certainty an administrative procedure should be initiated within a reasonable time after the event has occurred. Therefore, this Regulation should  include   provisions   on   a  period  of  limitation.
(24) The right to good administration requires that the Union’s administration exercise a duty of care, which obliges the administration to establish and review in a careful and impartial manner all the relevant factual and legal elements of a case taking into account all pertinent interests, at every stage of the procedure. To that end, the Union’s administration should be empowered to hear the evidence of parties, witnesses and experts, request documents and records and carry out visits or inspections. When choosing experts, the Union’s administration should ensure that they  are  technically   competent  and  not  affected  by  a  conflict   of  interest.
(25) During the investigation carried out by the Union’s administration the parties should have a duty to cooperate by assisting the administration in ascertaining the facts and circumstances of the case. When requesting the parties to cooperate, the Union’s administration should give them a reasonable time-limit to reply and should remind them of the right against self-incrimination where the administrative procedure  may  lead  to  a  penalty.
(26) The right to be treated impartially by the Union’s administration is a corollary of the fundamental right to good administration and implies staff members’ duty to abstain   from   taking   part   in   an   administrative   procedure   where   they   have,   directly or indirectly,    a    personal    interest,    including,    in    particular,    any    family    or    financial interest,  such   as  to   impair  their  impartiality.
(27) The right to good administration might require that, under certain circumstances inspections be carried out by the administration, where this is necessary to fulfil a duty or achieve an objective under Union law. Those inspections should respect certain   conditions  and  procedures  in   order  to   safeguard   the   rights   of  the  parties.
(28) The right to be heard should be complied with in all proceedings initiated against a person which are liable to conclude in a measure adversely affecting that person. It should not be excluded or restricted by any legislative measure. The right to be heard requires that the person concerned receive an exact and complete statement of the claims or objections raised and is given the opportunity to submit comments on  the  truth   and  relevance  of  the   facts  and   on   the  documents  used.
(29) The right to good administration includes the right of a party to the administrative procedure to have access to its own file, which is also an essential requirement in order to enjoy the right to be heard. When the protection of the legitimate interests of confidentiality and of professional and business secrecy does not allow full access to a file, the party should at least be provided with an adequate summary of the content of the file. With a view to facilitating access to one’s files and thus ensuring transparent information management, the Union’s administration should keep records of its incoming and outgoing mail, of the documents it receives and measures it takes, and establish an index of the recorded   files.
(30) The Union’s administration should adopt administrative acts within a reasonable time-limit. Slow administration is bad administration. Any delay in adopting an administrative act should be justified and the party to the administrative procedure should be duly informed thereof and provided with an estimate of the expected date  of  the  adoption   of  the  administrative  act.
(31) The right to good administration imposes a duty on the Union’s administration to state clearly the reasons on which its administrative acts are based. The statement of reasons should indicate the legal basis of the act, the general situation which led to its adoption and the general objectives which it intends to achieve. It should disclose clearly and unequivocally the reasoning of the competent authority which adopted the act in such a way as to enable the parties concerned to decide if they wish   to  defend  their   rights  by  an  application   for  judicial   review.
(32) In accordance with the right to an effective remedy, neither the Union nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by Union law. Instead, they are obliged to guarantee real and effective judicial protection and are barred from applying any rule or procedure which might prevent,   even   temporarily,  Union  law  from   having   full   force  and   effect.
(33) In accordance with the principles of transparency and legal certainty, parties to an administrative procedure should be able to clearly understand their rights and duties that derive from an administrative act addressed to them. For these purposes, the Union’s administration should ensure that its administrative acts are drafted in a clear, simple and understandable language and take effect upon notification to the parties. When carrying out that obligation it is necessary for the Union’s administration to make proper use of information and communication technologies and  to adapt  to their development.
(34) For the purposes of transparency and administrative efficiency, the Union’s administration should ensure that clerical, arithmetic or similar errors in its administrative  acts are corrected  by  the competent authority.
(35) The principle of legality, as a corollary to the rule of law, imposes a duty on the Union’s administration to rectify or withdraw unlawful administrative acts. However,   considering   that   any   rectification   or   withdrawal of   an   administrative   act may conflict with the protection of legitimate expectations and the principle of legal certainty, the Union’s administration should carefully and impartially assess the effects of the rectification or withdrawal on other parties and include the conclusions of such an assessment in the reasons of the rectifying or withdrawing act.
(36) Citizens of the Union have the right to write to the Union’s institutions, bodies, offices and agencies in one of the languages of the Treaties and to have an answer in the same language. The Union’s administration should respect the language rights of the parties by ensuring that the administrative procedure is carried out in one of the languages of the Treaties chosen by the party. In the case of an administrative procedure initiated by the Union’s administration, the first notification should be drafted in one of the languages of the Treaty corresponding to  the  Member  State  in  which  the  party  is  located.
(37) The principle of transparency and the right of access to documents have a particular importance under an administrative procedure without prejudice of the legislative acts adopted under Article 15(3) TFEU. Any limitation of those principles should be narrowly construed to comply with the criteria set out in Article 52(1) of the Charter and therefore should be provided for by law and should respect the essence of the rights and freedoms and be subject to the principle of proportionality.
(38) The right to protection of personal data implies that without prejudice of the legislative acts adopted under Article 16 TFEU, data used by the Union’s administration   should  be  accurate,  up-to-date   and  lawfully   recorded.
(39) The principle of protection of legitimate expectations derives from the rule of law and implies that actions of public bodies should not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest. Legitimate expectations should be duly taken into account where an administrative act  is  rectified  or  withdrawn.
(40) The principle of legal certainty requires Union rules to be clear and precise. That principle aims at ensuring that situations and legal relationships governed by Union law remain foreseeable in that individuals should be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly. In accordance with the principle of legal certainty, retroactive measures should not be taken  except  in  legally justified circumstances.
(41) With a view to ensuring overall coherence in the activities of the Union’s administration, administrative acts of general scope should comply with the principles  of  good administration  referred  to  in  this  Regulation.
(42) In the interpretation of this Regulation, regard should be had especially to equal treatment and non-discrimination, which apply to administrative activities as a prominent corollary to the rule of law and the principles of an efficient and independent  European  administration,
 
HAVE  ADOPTED  THIS  REGULATION: 
 
CHAPTER I GENERAL   PROVISIONS
 
Article  1 Subject  matter and objective…
  Continue reading “BETTER…ADMINISTRATIVE MAKING AT EU LEVEL (when the European Parliament paves the way to an, almost reluctant, European Commission…).”

The EU, Turkey and the Refugee Crisis: What could possibly go wrong?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 5 February 2016)

by Steve Peers* and Emanuela Roman, **

The key non-EU country in the EU’s ongoing refugee crisis is Turkey: the host ofover 2 million Syrian refugees, and a transit country for many asylum-seekers. An increasing number of them have been making the journey from Turkey to the Greek islands, leading to a significant rise in the number of would-be asylum-seekers in the EU over the last year. Tragically, many have died making this crossing.

To address these issues, the EU and Turkey reached a deal in November with a number of different elements. The main aim was to improve the position of Syrian refugees in Turkey (reducing the ‘push’ factor which results in more people planning to leave), and to return to Turkey those who did not need international protection. But, according to the latest Frontex statistics, most of the people arriving from Turkey do need international protection: about 90% of those arriving in Greece in December were from Syria, Iraq and Afghanistan, countries with high recognition rates for asylum claims.

It follows that returning to Turkey only those who don’t need international protection would only make a small dent in the numbers coming to the EU. Many politicians, in reaction to a portion of public opinion, would like to reduce those numbers far more. So last week, a further plan emerged: to return to Turkey those who do need international protection, on the grounds that they already had such protection in Turkey – or if not, they should seek it there. This would entail designating Turkey as a ‘safe third country’. The plan would entail a nearly immediate return to Turkey of any would-be asylum-seekers who reached the Greek islands.

The following analysis looks first of all at the main elements of the overall EU/Turkey deal on the refugee crisis, then in more detail at the new plan to return asylum-seekers to Turkey.

The EU/Turkey deal

The EU/Turkey deal contains concessions on both sides. The EU side has agreed: the opening of another chapter in the EU/Turkey accession process, and preparatory work by the Commission on further chapters; a proposal to lift Schengen visa requirements for Turkey by October 2016, if Turkey meets the requirements of the EU’s ‘roadmap’ on visa liberalisation; and a ‘Refugee Facility for Turkey’, totalling of €3 billion for Turkey. Subsequently, the Commission adopted a Recommendation on an EU ‘humanitarian admission scheme’ of Syrian refugees from Turkey (discussed in detail by Laura Robbins-Wright here).

In return, the Turkish side agreed: to readmit non-Turkish nationals to its territory, from June 2016; to apply a previously-agreed plan on the status of Syrian refugees in Turkey; and to prevent non-EU citizens from leaving.

There are also agreements in both sides’ mutual interest: to hold regular summits (at least twice a year); and to ‘upgrade’ the EU/Turkey customs union, to include services and investment, with negotiations to start before the end of 2016.

Several elements of the deal should be clarified further. It’s sometimes claimed that the deal has ‘fast-tracked’ Turkish membership of the EU. This is clearly not the case. Turkey applied for EU membership in 1987, and negotiation talks opened 18 years later, in 2005. In the eleven years since, the EU and Turkey have agreed only one of the 35 ‘chapters’ of issues being discussed in the negotiation. Before last year’s deal, they had opened another 13 chapters; the deal raised that number to 14. There is no date to open talks on the remaining 20 chapters; the deal is expressly without prejudice to EU Member States’ position on the planned ‘preparatory work’. Overall, the deal means that the enlargement negotiations will now move at the pace of a turtle, instead of a snail.

The prospect of Turkish accession to the EU also faces a number of obstacles on the EU side: objections by many Member States (including possible referendums), and misgivings by the European Parliament (which must approve accession treaties). Nor would accession lead immediately to free movement of Turkish citizens to the EU. Recent accession treaties have provided for waiting periods of seven years before workers from the new Member States can move to the older Member States, and the UK, which has a veto over accession treaties, insists that future enlargements must provide for even longer waiting periods.

As for the visa waiver, it should be noted that it will apply to (short-term) visas to visit the Schengen states. Therefore it will not ever apply to the UK and Ireland; and does not yet apply to Romania, Bulgaria, Croatia or Cyprus. It’s the EU’s usual practice to offer visa facilitation (fast-track issue of visas, with reduced fees) and then a full visa waiver to neighbouring States which have agreed a readmission treaty. As the text of the EU/Turkey deal points out, that waiver is dependent in each case upon the third State fulfilling a list of conditions set out by the EU (for the Commission’s most recent report on Turkey meeting those conditions, see here).

It’s the readmission deal – the quid pro quo for the visa waiver – that is central to the issue of the refugee crisis. The EU/Turkey readmission treaty has applied since October 2014. It applies to Turkish citizens straight away, but Turkey (like many other states signing up to readmission treaties) negotiated a delay before it applies to nationals of other countries. That’s a three year delay, so it was due to expire in October 2017. However, in light of the perceived migration and refugee crisis, the EU was not willing to wait that long until it called upon Turkey to accept third-state citizens back onto its territory.

Finally, the ‘Refugee Facility for Turkey’ aims to reduce the ‘push’ factor which leads to departures from Turkey to the EU. According to the Decision establishing the fund – which Member States finally agreed to recently – the Fund will assist refugees and host communities. No further details are given.

Before we look at the substance of the law on returning people to Turkey, it’s useful to make some general observations on EU policy in this area. Some critics of EU asylum policy argue that it should be more like the Australian policy. In fact, in some ways the EU is moving towards such a policy, as we’ll see. But – leaving aside for a moment the desirability of the EU adopting an ‘Australian’ asylum policy – there are legal, political, geographical and practical limits to doing so.

In a nutshell, Australia intercepts vessels of asylum-seekers on the high seas (international waters) and arranges for the asylum-seekers to be detained and their applications processed in other countries, which Australia considers to be ‘safe’. Furthermore, Australia resettles confirmed refugees directly from third countries (about 13,000 a year), as its contribution to sharing the burdens of the countries which host those refugees (the large majority of refugees live in developing countries).

There’s no legal obligation upon the countries which Australia considers ‘safe’ to take the asylum-seekers and process them. The UN Convention on Refugees (the ‘Geneva Convention’) imposes no such obligation (on the international law framework for ‘safe third country’ rules, see discussion here). Even if it did, some of the countries concerned haven’t ratified that treaty. So Australia has to talk those countries into accepting the people concerned. They won’t accept unless Australia pays most of the costs.

How does this compare with the EU? First of all, the numbers are hugely different:18,000 people arrived illegally by sea in Australia in 2012-13, whereas over a million potential asylum-seekers arrived in the EU last year. We’re comparing apples and orchards here. There are simply more people wanting to apply for protection in closer vicinity to the EU, as compared to Australia, and the distance to travel is shorter. Furthermore, there are no ‘high seas’ between Greece and Turkey, so interception raises different legal issues. Once would-be asylum-seekers reach Greek waters, EU law says they can apply for asylum, and Greece is also bound by the European Convention on Human Rights (ECHR) as regards them.

That brings us to the next distinction. The Australian constitution has weak human rights protection, and that country’s High Court has recently ruled in favour of the offshore detention policy. In contrast, EU countries are governed by the case law of the European Court of Human Rights (ECtHR), which is open to individual complaints and can give binding rulings, often critical of national policies in this area. While Australia has signed up to the International Covenant on Civil and Political Rights (ICCPR), and allows individuals to make complaints to the United Nations Committee which interprets that Covenant, the Committee’s rulings aren’t binding. When the Committee rules against Australian policy on asylum-seekers – which it often does – Australian politicians in effect throw the ruling on the barbecue.

So given the large numbers concerned and the legal constraints, if the EU wants non-EU countries to take back non-citizens of those countries who have made their way to the EU, it needs to offer a lot to them to convince them to do so. At first sight, it may seem overly generous for the EU to offer money to Turkey, waive visa requirements and accelerate the accession process a little, in order to secure Turkey’s cooperation as regards refugees and migrants. But Turkey is under no obligation now to take back non-citizens or to restrain them from leaving. Even after it agrees to accept returns of non-citizens to its territory, it could end its obligations at any time by denouncing the readmission agreement – if it is willing to accept the re-imposition of visa requirements by the EU as a consequence. The financial assistance, if spent as intended, will also reduce the ‘push’ factor for migration of Syrian refugees towards the EU.

Returning people to Turkey

Turkish citizens

Turkey is already obliged to accept back its own citizens under the readmission agreement with the EU. Turkish citizens in the EU might have rights to stay under the EU’s immigration and asylum legislation, or under the EU/Turkey associationagreement. But they have no general right of free movement to the EU, and there is no prospect of it being extended to them before (or indeed well after) EU membership. So those Turkish citizens in the EU without such a right to stay, including failed asylum-seekers, must be returned.

It should be noted that the EU Commission has proposed to list Turkey as a ‘safe country of origin’ for asylum purposes, meaning that asylum claims by Turks would be fast-tracked (but not rejected automatically). This is a rather dubious suggestion (for the reasons set out here), and it is not yet known whether it will be accepted.

Non-Turkish citizens: Irregular migrants

Turkey is not obliged to accept back any non-Turkish citizens until it brings forward the relevant obligations in the EU/Turkey plan – as it has agreed to do so. If someone has never applied for asylum, and has no other ground to stay, EU Member States will then be able to return them to Turkey, if the Member States can prove that the person was previously in Turkey. It should be sufficient to show that the person concerned crossed from Turkey to a Greek island.

This is equally the case for failed asylum-seekers, if the person concerned has failed on the merits. In other words, if the non-Turkish citizen has not convinced the Member State’s authorities (or the courts on appeal) that he or she faced persecution or serious harm, that person could be sent back to Turkey once that country extends the scope of the readmission deal.

The more difficult question – which is the subject of the new plan – is whether asylum-seekers who have come via Turkey can be rejected and returned to Turkey on the grounds that their applications are inadmissible. Let’s be clear what that means: those applications would not be rejected on the basis that the person wasn’t a genuine refugee, but that he or she either (a) could have applied for protection in Turkey or (b) already had protection there. The former is the ‘safe third country’ concept; the latter is the ‘first country of asylum’ concept. There are detailed definitions of each concept in EU law, in the Asylum Procedures Directive. We will consider those definitions in turn.

Is Turkey a ‘safe third country’?

On Thursday 28 January 2016, Diederik Samsom, leader of the Dutch Labour Party, announced in an interview with the newspaper De Volkskrant (followed by an interview on the nightly TV programme Niewsuur) a Dutch proposal for a new plan to radically reduce the number of migrants and asylum-seekers entering the EU from Turkey. The proposal was immediately baptised ‘the Samsom Plan’.

The plan would have the support of Dutch PM Mark Rutte and would also receive support by a number of EU Member States, among which Germany, Austria and Sweden. The idea is to offer Turkey the resettlement of 150,000 to 250,000 refugees per year from Turkey to the EU countries that voluntarily agree with the plan. This resettlement would presumably be on the basis of the Commission Recommendation on humanitarian admission from Turkey, referred to above. In exchange for this, Turkey would have to accept the return of all migrants and asylum-seekers who cross the Greek-Turkish border irregularly. According to Mr Samson, these people would have to be very rapidly returned from Greece to Turkey by ferry-boat, and it would be Turkey’s responsibility to deal with their reception and asylum application.

This new plan is based on the assumption that Turkey can be considered a ‘safe third country’ – a non-EU country where an asylum-seeker can apply for asylum and be granted access to asylum procedures and reception conditions in line with international and EU law.

The Samsom Plan, however, does not seem to come from Mr Samsom’s mind. The European Stability Initiative (ESI), a think tank specialised in Southeast Europe, presented a very similar proposal in October 2015. The original plan, based on the fundamental idea of considering Turkey a safe third country, was called ‘Merkel Plan’, because initially Germany alone would have the main role in the resettlement scheme with Turkey. The original plan was then further developed (becoming‘Merkel Plan 2.0’) and a ‘coalition of the willing’ (including the Netherlands) was gathered around Germany. From October 2015 to January 2016 the ESI presented this proposal in different countries across Europe, but it was only following Mr Samsom’s interview, that the now renamed Samsom Plan burst into the public debate.

What is the legal definition of a ‘safe third country’? Article 38(1) of the Asylum Procedures Directive sets out a series of legal requirements that need to be met in order for a third country to be considered ‘safe’ for asylum-seekers:

  1. a) life and liberty shall not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
  2. b) there shall be no risk of serious harm (consisting of: death penalty; torture or unhuman or degrading treatment; or a serious threat to the applicant’s life due to indiscriminate violence in situations of conflict, as defined by Article 15 of theQualification Directive, ie the concept of ‘subsidiary protection’);
  3. c) the principle of non-refoulement (non-return to an unsafe country) shall be respected; and
  4. d) the possibility shall exist for the applicant to claim refugee status and to receive protection in accordance with the  Geneva Convention.

Article 38(2) establishes also several procedural guarantees. The safety of a third country must be always assessed on a case-by-case basis in order to check whether the notion is applicable to the particular circumstances of the individual applicant concerned. Moreover, the applicant must be guaranteed the right to challenge the application of the safe third country concept to his or her case, based on the fact that that country may not be safe in his or her particular circumstances. The question is whether an extremely rapid procedure as the one envisaged by Mr Samsom, would allow for a case-by-case examination of the individual circumstances of each asylum-seeker arriving in Greece from Turkey.

A further, more practical, question concerns who would be responsible for these procedures. Considering the difficulties faced by the Greek authorities in managing the current migrant flow and the established deficiencies of the Greek asylum system, it is hard to believe that the Greek authorities (despite the assistance provided by Frontex and the European Asylum Support Office, EASO) would be able to implement a systematic readmission plan as far-reaching as the one foreseen by Mr Samsom. As mentioned above, such plan must indeed be based on the individual consideration of each asylum application, otherwise it could amount to  a violation of the prohibition of collective expulsions entailed in Article 4 Protocol 4 of the ECHR. Such practice has been condemned by the European Court of Human Rights (ECtHR) in the famous Hirsi case, where the Grand Chamber found Italian authorities responsible for violating the ECHR, because they returned a group of Eritrean and Somali migrants intercepted on the high seas back to Libya without granting them the possibility to apply for asylum. The same rule obviously applies to asylum-seekers who enter the territorial waters or land on the territory of a Member State.

In addition, according to Article 46 of the Procedures Directive, asylum-seekers have the right to refer to a national court the decision to consider their application inadmissible pursuant to Article 33(2). They can stay on the territory during their initial application, and apply to a court to stay during this appeal. The Grand Chamber of the ECtHR unanimously confirmed in Hirsi (and reiterated in following case law – see for instance, Sharifi and others v Italy and Greece and Khlaifia and others v Italy) that return is only possible after the asylum-seeker has been able to claim asylum before a national authority, and to stay on the territory at least until the first instance decision on the application was made. However, it is even more doubtful that the accelerated procedure proposed by Samsom would allow for asylum-seekers to challenge the decision to return them to Turkey in front of a judicial authority and in the respect of all due procedural safeguards under the Directive and the ECHR.

However, besides the procedural issues, the crucial question here is more substantive: can Turkey be considered as a safe third country? Does Turkey comply with the requirements established by the Procedures Directive?

First, Turkey ratified the 1951 Geneva Convention and its 1967 Protocol, but maintains a geographical limitation for non-European asylum-seekers, thus recognising refugees originating only from Europe (i.e. from countries which are members of the Council of Europe). The geographical limitation provides the first barrier to accessing asylum in the country. Moreover, Syrians represent a particular case. They were at first received as ‘guests’ and then subject to a temporary protection regime, formalised by a Regulation on Temporary Protection only in October 2014 (for more details, see the updated AIDA Country Report on Turkey). The basic idea behind the temporary protection regime is to host Syrians until the conflict is over and then possibly let them return to their country of origin. As such, Syrians have a right to reside in the country but are denied the prospect of a long-term legal integration. They have access to limited rights compared to asylum-seekers in the ‘normal’ procedure, in particular as concerns access to education for children (on this point, see for instance, Human Rights Watch report) and access to employment. Although in January 2016, the Turkish government adopted adecision aimed at ensuring that Syrians can enter the labour market, the effects of this new regulation are yet to be seen in practice. Most importantly, Syrians in Turkey do not have access to refugee protection in its full sense, as enshrined in the Geneva Convention. For the reasons set out in more detail in the annex to this blog post, it is arguable that the ‘safe third country’ clause can only be interpreted as applying to countries which have ratified and fully apply the Geneva Convention.

Secondly, Turkey should respect the principle of non-refoulement, a prohibition on returning a person to a place where he or she faces a risk of persecution, torture, or inhuman or degrading treatment. However, several reports suggest that Turkey has engaged in refoulement and push-back practices throughout the years 1990s and 2000s. In particular, in November and December 2015, Human Rights Watch andAmnesty International denounced an increase in deportations, push-backs, arbitrary detentions and physical violence against asylum-seekers trying to cross the Turkish southern border coming from Syria or Iraq, or trying to enter Greece from Turkey, either by land or sea. This increase would coincide with the period leading up to and after the signing of the above-mentioned EU/Turkey deal.

Thirdly, in Turkey asylum-seekers and migrants in general, face a number of obstacles which may increase their risk of serious harm. In particular, Turkey has a record of treating asylum-seekers and refugees harshly in detention: episodes of torture or inhuman or degrading treatment have been reported by NGOs (Global Detention Project and Amnesty International among others) and condemned by the ECtHR in a series of judgments (see for instance, Abdolkhani and Karimnia v Turkey and the recent SA v Turkey, judgement of 15 December 2015). Furthermore, with reference to serious harm due to indiscriminate violence in a situation of conflict, the internal conflict between Turkey and the Kurdish rebels, which has escalated during the last year, may pose threats to the lives of asylum-seekers and refugees in the southeast of the country.

Therefore, it seems that Turkey does not fulfil many of the requirements for designation as a safe third country under the Procedures Directive. Even though the Samsom Plan does not mention this option, it seems now interesting to consider whether a similar policy could theoretically be implemented based on two different concepts entailed in the Procedures Directive, the concepts of ‘European safe third country’ and ‘first country of asylum’. The latter will be examined more in detail.

Is Turkey a ‘super-safe’ third country?

This wasn’t mentioned above, but the Asylum Procedures Directive also provides for a special category of ‘European safe third country’, which has been dubbed (sarcastically) the ‘super-safe’ third country concept. In this case, a Member State could have ‘no, or no full’ consideration of an asylum application – as foreseen by the Samsom Plan. The legal requirements for a country to be considered a ‘European safe third country’ are set out in Article 39(2) of the Directive:

  1. a) the ratification and full implementation of the Geneva Convention without any geographical limitation;
  2. b) the existence of an asylum procedure prescribed by law; and
  3. c) the ratification and full implementation of the ECHR.

Even though Turkey has in place an asylum procedure prescribed by law (Law on Foreigners and International Protection adopted in April 2013 is Turkey’s first-ever national legislation on asylum), is a party to the ECHR (even though one of the parties with the highest number of condemnations by the ECtHR for violations of this treaty) and has ratified the Geneva Convention, as mentioned above, it maintains a geographical limitation to the application of the Geneva Convention, excluding non-European asylum-seekers from the refugee status. For this reason Turkey could not even be considered a ‘European safe third country’.

Could Turkey be considered a ‘first country of asylum’?

Could then the notion of ‘first country of asylum’ apply to Turkey? Could asylum-seekers possibly be returned from Greece to Turkey based on the fact that Turkey is their first country of asylum?

Article 33(2)(b) of the Procedures Directive foresees the possibility for a Member State to deem an asylum application inadmissible if it considers a non-EU country to be a first country of asylum for a particular applicant. Article 35 establishes that a third country can be a first country of asylum in two cases:

  1. a) if the applicant has been recognised as a refugee in that country and can still avail himself or herself of that protection; or
  2. b) if the applicant otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement.

Article 35 further specifies that in applying this concept Member States may take into account the legal requirements provided for by Article 38(1) – i.e. those used to establish whether a country is a safe third country. It also states that asylum-seekers ‘shall be allowed’ to argue that the principle cannot apply to their particular circumstances. Furthermore, they also have the right to appeal pursuant to Article 46 of the Procedures Directive (and stay on the territory during the application and at least at the outset of the appeal), as discussed above.

For the reasons set out in the annex to this blog post, option (a) arguably refers only to obtaining status under the Geneva Convention. Therefore Turkey cannot be considered a first country of asylum for a non-European asylum seeker, due to its geographical limitation on that Convention. On the other hand, option (b) might apply. In Turkey, indeed, non-European asylum seekers can, at least theoretically, have access to an alternative form of protection: the so-called ‘conditional refugee status’ (for applicants who would qualify as refugees under the Geneva Convention but who come from a non-European country) or the EU-inspired subsidiary protection. Moreover, as mentioned above, asylum seekers originating from Syria have access to a different form of temporary protection.

These three alternative forms of protection differ in terms of the level of rights their holders benefit from, which in all cases (and in particular in the case of Syrians benefiting from temporary protection) is lesser than the one recognised to ‘European refugees’ (for details on the content of these three alternative forms of protection, see the AIDA Country Report on Turkey). The question is: could these forms of protection be considered as ‘sufficient protection’? How can a Member State establish when protection is ‘sufficient’?

Article 35 provides two reference points, one being strictly mandatory, the other one being optional. The first one is the respect of the non-refoulement principle. Turkey is formally bound to the principle of non-refoulement, being a party to the ECHR and having incorporated the principle into Article 4 of its Law on Foreigners and International Protection as well as in Article 6 of its Temporary Protection Regulation. However, as mentioned above, the country has a historical record ofrefoulement practices and there are allegations of a recent intensification of push-backs and deportations of Syrians and other asylum-seekers. Therefore, Turkey does not seem to be fully compliant with the principle of non-refoulement in practice. But, in light of the fact that each asylum application must be examined individually based on the specific circumstances of the case, Member States might argue that the risk of non-refoulement could be assessed on a case-by-case basis in order to establish if that particular applicant enjoys sufficient protection in Turkey.

The second reference point mentioned by Article 35 is Article 38(1). In deciding whether a third country can be considered a first country of asylum, Member States may apply the same criteria they use for determining whether that country could be a safe third country. As discussed above, Turkey does not seem to comply with most of the safe third country legal requirements and, on this basis, it might be argued that in general it should not be considered a first country of asylum. However, because this is a ‘may’ clause, Member States have no obligation to apply Article 38(1) requirements to Article 35 cases and can simply ignore the possible link between the two concepts.

Therefore, although the possible application of the concept of first country of asylum to Turkey seems in general rather controversial, Member States might apply it on an individual basis, based on option (b). However, if they decide to do so, Member States’ authorities would have to conduct a case-by-case assessment, taking into due consideration the particular circumstances of each individual applicant in order to determine whether he or she enjoys sufficient protection in Turkey and does not risk being refoulé(e). As discussed above, an individual examination of all asylum claims (including the applicant’s right to appeal against a negative decision) is incompatible with the extremely rapid procedure and systematic readmission mechanism envisaged by the Samsom Plan.

A change in EU law?

The above discussion is based on current EU legislation. It is, of course, possible in principle for the EU to amend that legislation via the usual process, or arguably via means of an ‘emergency’ measure on asylum pursuant to Article 78(3) TFEU. The previous use of Article 78(3), for a ‘relocation’ system, is being challenged byHungary and Slovakia. (On the latter challenge, see discussion here; and on the general legal issues concerning that provision, see discussion here.) There might be some specific procedural issues about the use of Article 78(3) to establish the Samsom Plan, but the underlying issue is substantive: could EU law be changed (by either means) to set up a ‘return ferries’ process?

The answer is clearly: No. All EU asylum measures are subject to the general rules in Article 78(1) TFEU: ‘compliance with the principle of non-refoulement’, and acting ‘in accordance with the Geneva Convention…and other relevant treaties’. Also, all EU measures are subject to the EU Charter of Fundamental Rights, which must be interpreted consistently with the ECHR (Article 52(3) of the Charter).

It must follow that at the very least, the ECHR case law minimum standards discussed above must apply. So no revised EU law can provide for return of people coming from Turkey without some proper individual consideration of their claim that Turkey would not be a safe country for them; and there must be a right to appeal and stay in the country at least until the first-instance decision is made on this issue. To the extent that the Samsom Plan does not respect this irreducible core of human rights protection, it would be illegal.

Conclusion

Although it is remarkable that Turkey adopted a new comprehensive EU-inspired asylum legislation and is a state party to major human rights conventions, such as the European Convention on Human Rights, the Refugee Convention and the Convention against Torture, the way it has so far implemented its international human rights obligations appears to be still faulty. In particular, the right to asylum in Turkey cannot be considered as ‘fully established’, especially because of the still largely dysfunctional asylum system and the existing inequalities in access to protection and content of protection, which at the present moment are affecting Syrian refugees in particular.

For these reasons, the Samsom Plan proposing the systematic return of all asylum seekers from Greece to Turkey in exchange for increased refugee resettlement in Europe, appears to be not only very difficult to implement (due to both legal and practical obstacles), but also based on the doubtful presumption that Turkey may be (soon) considered a safe third country for refugees and asylum-seekers.

Furthermore, it is unfortunate that the EU and Turkey did not agree to fully apply the Geneva Convention for Turkey, and that there are no mechanisms of accountability in place for the EU institutions to report either in general upon Turkey’s compliance with international human rights standards or in particular to explain exactly how the EU’s money is being spent.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: insidethegames.biz

**Emanuela Roman is a PhD candidate in Human Rights at the University of Palermo and junior researcher at the Forum of International and European Research on Immigration (FIERI). This article was written during the period she is spending as a visiting researcher at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section. Emanuela would like to thank all her colleagues at the VU Migration Law Section, in particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer and Hemme Batijes for their precious comments and advise. The sole responsibility for the content of this article lies with the authors.

Annex I

Interpreting the ‘safe third country’ clause in the Procedures DirectiveAs noted above, Article 38 of the Asylum Procedures Directive says that in a safe third country it must be possible for the applicant ‘to request refugee status and … to receive protection in accordance with the Geneva Convention’. In my view, this can only refer to States which have ratified and fully apply the Convention; therefore it cannot apply to Turkey. I am grateful for a discussion with Daniel Thym on this issue – although I should note that he holds the opposite opinion.

First of all, this interpretation is supported by the legislative history of the text, which is set out in detail in Annex II. The original draft in 2002 made expressly clear that the clause could apply even if a State had not ratified the Convention. During negotiations that text was revised so that the final wording states that it must be possible to get status ‘in accordance with’ the Convention. Attempts by several Member States to make it clear that alternative types of protection besides full Convention refugee status could also trigger the clause were not successful.

Secondly, the ordinary meaning of the words ‘in accordance with’ in English is ‘in compliance with’, although the other language versions are equally valid. This is confirmed by the words ‘refugee status’: the full title of the Geneva Convention is the ‘Convention on the Status of Refugees’. How can one apply for ‘refugee status…in accordance with the Geneva Convention’ if the state concerned has not ratified, or does not fully apply, the ‘[Geneva] Convention on the Status of Refugees’? While the definitions clause refers to Member States as regards the definitions of ‘refugee’ and ‘refugee status’, this logically cannot be intended to apply to Article 38, since that Article only refers to applications made in non-EU states.

Thirdly, the a contrario rule supports this interpretation. Where the drafters of the Directive wanted to refer to the possibility of applying for an alternative form of protection, they did so expressly, as in Article 35(b) of the Directive. Admittedly Article 39, which refers more clearly to the geographical reservation of Turkey as a (failed) condition for the ‘super-safe’ countries rule to apply, points in the opposite direction. But to the extent that these two a contrario analyses simply cancel each other out, the interpretation in line with the legislative history and ordinary meaning should apply.

Similarly ‘recognised as a refugee’ under Article 35(a) of the Directive should be interpreted to refer to the Convention refugee status, in the absence of any indication that any alternative meaning is intended. However, Article 35(b) does clearly provide for an alternative option of designating a state as a ‘first country of asylum’ due to the existence of other forms of protection.

Annex II: Legislative history of the ‘safe third country’ clause

  • Commission proposal, 2002: explicitly provides in an Annex that a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 6929/03 – a note indicates that the Council will start work looking at ‘safe’ country concepts. This plan is soon dropped; the Council looks first at Arts 1-22 instead.
  • Council doc 7214/03 – Annex unchanged at this point, no MS comments
  • Council docs 10064/03 and 10456/03 – ditto
  • Council doc 10722/03 – minor amendment to annex to state that Cartagena declaration countries must have a procedure compliant with the principles of the Geneva Convention
  • Council doc 11108/03 – no change
  • Council doc 11575/03 – annex shortened a little
  • Council doc 12281/03 – annex shortened significantly
  • Council doc 12734/03 – annex is simplified, but still provides for rules (same as in previous text) on when a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 13369/03 – same text, but Germany now has a reservation linked to the ‘super-safe’ country clause, and Finland says the relevant clause could be deleted
  • Council doc 13901/03 – unchanged
  • Council doc 13902/03 – unchanged. The Presidency notes that delegations have inflexible positions on these provisions.
  • Council doc 14020/03 – ditto
  • Council doc 14182/03 – issue sent to the Council
  • Council doc 14330/03 – text unchanged
  • Council doc 14686/03 – text unchanged. But Spain suggests deleting the annex and having a short description of ‘safe third country’ in the main text, which is vague as to whether the state in question must have ratified the Convention
  • Council doc 14686/03 add 1 – Presidency proposes to delete the annex and have a short description of ‘safe third country’ in the main text, which only mentions the Convention as regards non-refoulement
  • Council doc 15153/03 – clause now in the main text, annex deleted. No change re Convention issue. DE still has reservation linked to ‘super-safe’ clause
  • Council docs 15153/03 rev 1 and 2 – amended to refer to ‘request recognition and be granted protection by that country or by the UNHCR as a refugee’. Spain wants to delete ‘as a refugee’. BE, NL and FI want to add express clause requiring ratification of the Convention and/or observation of the Convention. DE reservation is gone.
  • Council doc 15198/03 – unchanged
  • Council doc 15198/03 add 1 – UK wants to delete the whole sub-para
  • Council doc 6871/04 – redraft adds clause separate from main criteria for ‘safe third country’: ‘…Member States shall have regard to whether the third country has ratified the Geneva Convention…’ when assessing the application of those criteria. The clause in the main criteria now reads ‘request and be granted protection as a refugee in that country’. This deletes the reference to the UNHCR and makes it clear that it must be the country which grants refugee status.
  • Council doc 6954/04 – unchanged, but UK joined by EL/ES/NL/AT want to add the words ‘or other forms of international protection’ to the criteria
  • Council doc 7183/04 – unchanged, NL no longer supporting the UK position
  • Council doc 7184/04 – unchanged
  • Council doc 7184/1/04 – unchanged. UK and ES now want to change to ‘or another form of status which otherwise offers sufficient protection’ to the criteria. This is similar to final ‘first country of asylum’ clause.
  • Council doc 7484/04 – due to deadlock, Presidency proposes dropping clause on ‘request and be granted protection as a refugee’ to get a deal.
  • Council doc 7729/04 – ditto
  • Council doc 8166/04 – redraft retains ‘request and be granted protection as a refugee’ clause, drops requirement to take into account whether third State has ratified Convention
  • Council doc 8158/04 – same text and reservation as in 7184/1/04
  • Council doc 8413/04 – text amended to read:  ‘the possibility exists to requestrefugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’. UK and Spanish proposal rejected – link to Geneva Convention in fact made explicit instead
  • Council doc 8415/04 – as before, except the UK seeks to amend to read ‘in accordance with the principles of the Geneva Convention’. This is clearly rejected in the final version.

    • Posted by Steve Peers 

Protecting civilians in armed conflict International framework and challenges

EUROPEAN PARLIAMENT RESEARCH SERVICE BRIEFING (January 2016)

Author: Carmen-Cristina Cîrlig

SUMMARY

In today’s armed conflicts, whether international or intra-state, the vast majority of casualties are now civilians. Increasingly, civilians are victims of deliberate attacks and other serious violations by parties to a conflict – both states and non-state armed groups, despite the existence of strict legal rules intended to spare civilians from the effects of hostilities: the principles of international humanitarian law, of international human rights law and refugee law.
The lack of compliance with these norms, as well as the United Nations Security Council’s inability to take action to protect civilians in some specific cases, reflects the key concerns regarding the protection of civilians affected by armed conflicts worldwide. Moreover, specific protection concerns relate to the situation of women, children and displaced persons.
Besides this international legal framework, another related concept has garnered significant support internationally in the past decade: the Responsibility to Protect (R2P), meant to apply only in cases of atrocity crimes. However, R2P remains controversial, given the challenge of adequate implementation, particularly with regard to its military intervention aspects.
Notwithstanding the many challenges with regard to protecting civilians in armed conflict, the European Union is a strong promoter of international humanitarian principles and of R2P, and other protection-related issues are consistently among its priorities.

Armed Conflicts

 

Trends in armed conflicts and impact on civilians…

Continue reading “Protecting civilians in armed conflict International framework and challenges”

L’ELSJ à l’heure de l’état d’urgence : un effet collatéral du « syndrome shadok » de la lutte antiterroriste française ?

ORIGINAL PUBLISHED ON CDRE PAGE  (2 FÉVRIER 2016)

by Pierre Berthelet, CDRE

« Il vaut mieux pomper d’arrache-pied même s’il ne se passe rien que risquer qu’il se passe quelque chose de pire en ne pompant pas ». La devise des Shadoks n’aura nullement échappé à l’observateur du droit français de la lutte antiterroriste au moment où le gouvernement prolonge la loi sur l’état d’urgence, validée par le Conseil d’État dans une ordonnance du 27 janvier 2016. La France, en proie à une pulsion législative si bien évoquée dans l’ouvrage Un droit pénal postmoderne ?, empile les textes juridiques destinés à faire face à la menace terroriste. La France semble être atteinte du « syndrome Shadok » caractérisé par une inflation législative constante.

Ce « syndrome Shadok » évoqué par Yves Trintignon de l’Université du Québec met en évidence le fait que le gouvernement français, confronté aux attaques terroristes de janvier et de novembre 2015, s’est empressé de renforcer les capacités des services de renseignement sans réellement s’interroger sur les difficultés rencontrées en matière d’organisation, sur les défaillances de leurs méthodes, ou encore sur les lacunes de leurs pratiques opérationnelles. Pis, il aggrave la situation en répondant promptement à la demande de ces services, et à l’inquiétude de l’opinion publique, sans véritablement faire preuve de distanciation à l’égard des effets pervers à plus long terme.

 

Une telle vision à court-termiste consistant à « pomper » sans relâche, c’est-à-dire à renforcer constamment le dispositif antiterroriste, est constatée à l’échelon national, mais aussi à l’échelon européen. D’emblée, la construction européenne dans ce domaine connaît des progrès sensibles. Ces avancées, observables concernant particulièrement l’ELSJ, s’expliquent notamment par l’implication de la France dans le processus décisionnel, désireuse que l’Union soit pleinement associée à la lutte qu’elle mène (1).

 

Cependant, à y regarder de près, la construction européenne risque d’être davantage victime que bénéficiaire de l’engagement de la France dans l’intégration européenne. En effet, son implication est avant tout dictée par une logique en vertu de laquelle le gouvernement entend obtenir un crédit politique à travers une réaffirmation de son autorité. L’État cherche à se légitimer à travers les lois qu’il prend, peu importe d’ailleurs leur efficacité. Il est d’ailleurs à noter que la France réclame une plus grande implication de l’Union dans la lutte antiterroriste, mais elle se garde bien de demander une évaluation globale de l’efficacité des politiques menées par les différents États membres.

 

Le « syndrôme Shadok » de la lutte antiterroriste française, qui consiste à pomper toujours plus même si cela ne sert à rien, a un impact néfaste sur l’édification de l’ELSJ à long terme (2).

 

Toute tentative de vouloir ralentir cette course effrénée est susceptible de constituer un obstacle inadmissible à l’égard d’un État membre désireux de se défendre face à une menace d’une gravité extrême. Qui plus est, les valeurs sur lesquelles l’Union est fondée, la préservation de l’État de droit et le respect des droits de l’homme pourraient faire les frais d’une telle course aveugle. On voit dès lors l’importance du juge européen, comme rempart face au cercle vicieux sécuritaire traduit en langage shadok par « je pompe donc je suis ».

 

  1. Le rôle moteur dans la lutte antiterroriste d’une France aux allures pro-européenne

 

La France apparaît comme l’aiguillon, désireuse de progresser dans l’intégration européenne, et ce, pour ce qui est de l’ELSJ. Un document du Conseil indique ainsi que la délégation française souhaite élargir le champ de la proposition de directive présentée par la Commission européenne le 2 décembre 2012.

Pour mémoire, ce texte, remplaçant la décision-cadre 2002/475/JAI du Conseil relative à la lutte contre le terrorisme, entend harmoniser la législation nationale concernant l’incrimination des « combattants étrangers », de même que l’aide apportée à la sortie du territoire. La décision-cadre a fait l’objet d’une modification en 2008 pour rendre punissable la provocation publique à commettre une infraction terroriste, ainsi que la diffusion sur Internet de la propagande terroriste.

De son côté, la France estime qu’il convient d’aller au-delà de cette actualisation de la législation européenne au regard des textes internationaux ayant trait à ce phénomène des « combattants étrangers » (la résolution du Conseil de sécurité des Nations unies (RCSNU) 2178 (2014)) et le protocole additionnel à la Convention du Conseil de l’Europe pour la prévention du terrorisme de mai 2015).

Elle considère notamment qu’il importe de rendre punissable dans tous les États membres le trafic d’œuvres d’art en provenance de zones sous contrôle terroriste et de supprimer les pages internet incitant au terrorisme ou d’en bloquer l’accès.

Les ajouts de la France dans la proposition de directive s’inscrivent dans un contexte où ces questions font l’objet d’une attention particulière en droit interne.

Ainsi, concernant le trafic d’œuvres d’art, la répression du commerce illicite de biens culturels figure dans le projet de loi contre le crime organisé et le terrorisme, qui doit être présenté courant février 2016.

Pour ce qui est de la suppression des pages internet faisant l’apologie du terrorisme, le Sénat avait adopté le 1er avril 2015 une résolution européenne réclamant l’extension des compétences du Centre européen de lutte contre la cybercriminalité (EC3) en lui donnant la possibilité de supprimer des contenus terroristes ou extrémistes.

Peu avant, le 5 février 2015, un décret a été adopté fixant les modalités permettant aux internautes d’avoir accès à des pages web faisant cette apologie.

La force de proposition de la France concernant ce projet de directive est le reflet d’une volonté politique affichée concernant l’ELSJ : dans une déclaration après le Conseil JAI à Amsterdam du 25 janvier 2016, le ministre de l’Intérieur, Bernard Cazeneuve, fixe les demandes françaises, entendues comme des priorités « essentielles » figurant dans un agenda qui « n’est pas négociable ». Il énumère également les mesures sur lesquelles la France a obtenu satisfaction, en prenant le soin d’ajouter que bon nombre de ces mesures ont été initiées sous son impulsion : la directive PNR, la modification de l’article 7-2 du code frontières Schengen visant à instaurer des contrôles approfondis sur les ressortissants européens quittant l’espace Schengen, ou encore la révision de la directive de 1991 relative au contrôle des armes à feu.

 

  1. La stratégie de fuite en avant sécuritaire d’une France tentée par le repli national

 

La déclaration du ministre de l’Intérieur à l’issue du Conseil JAI du 25 janvier 2016 démontre l’intention de la France de continuer « son travail de persuasion » avec « beaucoup de volontarisme », pour reprendre les termes du texte. Elle fait office également de satisfecit, à la fois au sujet de l’efficacité de l’implication de la France dans la sphère institutionnelle et concernant l’action de l’Union européenne menée sous sa houlette, en matière de lutte antiterroriste.

 

La France s’est engagée depuis de nombreuses années dans une logique de renforcement continuel de l’arsenal répressif au nom de ce que le président de la République a qualifié de « guerre contre le terrorisme ». La fuite en avant sécuritaire se traduit par l’adoption de nombreux textes en 2014 et en 2015 : plan d’avril 2014 contre la radicalisation violente et les filières terroristes, loi du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme et décrets d’application du 14 janvier 2015 destinés à mettre en place l’interdiction administrative de sortie du territoire des ressortissants français, décret précité du 5 février 2015, décret du 4 mars 2015 relatif au déréférencement des sites, plan d’action du 18 mars 2015 pour lutter contre le financement du terrorisme, loi du 24 juin 2015 sur le renseignement et ses multiples décrets d’application, et décret du 14 novembre 2015 instaurant le régime de l’état d’urgence, prorogé par la loi du 20 novembre 2015.

 

D’autres projets sont en cours : projet de loi précité contre le crime organisé et le terrorisme, proposition de loi relative à la sécurité dans les transports, projet de loi constitutionnelle « de protection de la nation » comprenant deux volets, à savoir la déchéance de la nationalité d’un binational devenu français et l’inscription dans la Constitution des conditions de déclenchement de l’état d’urgence.

 

Cette fuite en avant est inquiétante, car s’il est possible de comprendre la stratégie de la France dans une perspective purement nationale, notamment à l’aune des manœuvres déployées par le gouvernement à l’égard du Front national, il est aussi possible d’inscrire le renforcement de l’arsenal répressif dans un contexte de dérive autoritaire que connaissent bon nombre de gouvernements européens, la Pologne au premier chef, vis-à-vis de laquelle la Commission a engagé une procédure de dialogue sur la base de l’article 7.1 TUE.

 

Une telle fuite en avant se traduit, sur le plan européen, par davantage de fermeté de la part de la France : fermeté vis-à-vis d’un Parlement européen réticent à adopter la directive PNR, fermeté à l’égard des délégations nationales enclines à tergiverser au Conseil sur les propositions d’actes en instance d’adoption, fermeté à l’encontre de la Commission désireuse de vérifier la conformité de la décision française de rétablir les contrôles aux frontières intérieures.

 

L’ultimatum lancé à celle-ci par le gouvernement français concernant le rétablissement de ces contrôles en vertu de l’art. 25 du Code Frontières Schengen, aussi longtemps que perdurerait la menace terroriste, est significatif de sa volonté d’afficher, sur tous les fronts, une détermination sans faille. Or, lerétablissement temporaire prolongé en dehors des délais prévus par le Code pose problème du point de vue de la légalité européenne, en particulier au regard des art. 23, 23bis et 25 du code.

L’attitude de la France consistant à faire preuve de fermeté tous azimuts lui permet de faire illusion sur le plan politique. Celle-ci se pare des atours d’une nation leader de la construction européenne pour mieux dissimuler les tentations de repli national. En effet, les efforts menés pour se trouver à la pointe de la lutte antiterroriste masquent la prévalence des intérêts nationaux érigés, en matière sécuritaire, au rang de principes absolus, insusceptibles de limitation.

 

D’ailleurs, pour s’en convaincre, il suffit de constater que, quel que soit le gouvernement, de droite ou de gauche, la France n’hésite pas à remettre en cause publiquement l’acquis de Schengen si celui-ci lui porte préjudice. Une telle attitude se révèle problématique d’un point de vue politique, car elle menace de détricoter cet acquis, faisant, par la même occasion, le jeu de certains gouvernements situés à l’Est de l’Europe.

 

Une telle attitude, prompte par ailleurs à désigner Schengen comme bouc émissaire, et à pointer les défaillances de l’ELSJ, se révèle problématique d’un point de vue juridique, car le droit français adopté dans le contexte de la lutte antiterroriste pose la délicate question de sa conformité du point de vue du droit européen. Ainsi, une France sous état d’urgence prolongé aurait-elle pu adhérer à l’Union européenne conformément aux critères insérés aux art. 6 et 49 TUE ? De manière générale, la législation française est-elle conforme à l’art. 2 TUE ainsi qu’aux dispositions de la Charte européenne des droits fondamentaux ?

 

La question est d’autant plus pertinente que le forcing français à l’égard de la directive PNR pourrait conduire à une annulation de ladite directive et ce, au regard de la jurisprudence Digital Rights. À ce propos, les juges européens se montrent sévères à l’égard de la dérive sécuritaire observée dans les États membres.

 

Prenant appui sur cette jurisprudence Digital Rights, la Cour européenne des droits de l’Homme, dans un arrêt du 12 janvier 2016, Szabo et Vissy c. Hongrie (voir l’analyse de Sylvie Peyrou), s’est montrée très ferme à l’égard des mesures nationales prises dans le cadre de la lutte contre le terrorisme, en l’occurrence les opérations secrètes de surveillance antiterroriste.

 

Le rôle du juge européen n’a jamais été aussi important, non seulement comme défenseur du droit, mais aussi comme gardien des valeurs européennes. Il s’érige comme l’ultime recours face à cette fuite en avant sécuritaire préoccupante pour l’Europe et pour la France. Les mots de la Commission nationale consultative des droits de l’homme (CNCDH) dans sa déclaration du 16 janvier 2015 sur l’état d’urgence et ses suites sonnent particulièrement juste : « la France ne doit pas, sous l’emprise de la sidération, sacrifier ses valeurs, au contraire, elle doit renforcer la démocratie ».

 

Live. Die. Repeat. The ‘Privacy Shield’ deal as ‘Groundhog Day’: endlessly making the same mistakes?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 3 February 2016)

by Steve Peers

Love it, hate it, or spend an academic career analysing it, the USA is the best-known country in the world. Yet some of its traditions still puzzle outsiders. One of them, celebrated yesterday, is ‘Groundhog Day’: the myth that the appearance, or non-appearance, of the shadow of an otherwise obscure rodent on February 2nd each year will determine whether or not there will be another six weeks of winter. Outside the USA, Groundhog Day is probably better known as a movie: grumpy Bill Murray keeps repeating the same day, trying to perfect it and woo the lovely Andie MacDowell. Others have borrowed this basic plot. In Edge of Tomorrow, sleazy Tom Cruise keeps repeating the same day, trying to kill aliens and woo the lovely Emily Blunt. In the Doctor Who episode Hell Bent, angry Peter Capaldi keeps repeating the same day, trying to cut through a diamond wall and resurrect the lovely Jenna Coleman.

The basic idea is summed up in the advertising slogan for Edge of Tomorrow: Live. Die. Repeat. Groundhog Day in particular has attracted many interpretations. Of these, the most convincing is that the film’s story is a Buddhist parable: repeated reincarnation until we reach the state of enlightenment, or nirvana.

How does this relate to the new EU/US privacy deal, dubbed ‘Privacy Shield’? Obviously the deal involves the USA, and it was reached yesterday, on Groundhog Day. And it’s a new incarnation of a prior deal: ‘Safe Harbor’, killed last October by the CJEU in the Schrems judgment (discussed here). While the text of the new agreement is not yet available, the initial indication is that it is bound to be killed in turn – unless the CJEU, admittedly an increasingly fickle judicial deity, is willing to go back on its own case law. Goodness knows how many further reincarnations will be necessary before the US and EU can reach enlightenment.

Problems with the deal

The point of the new deal is the same as the old one: to provide a legally secure set of rules for EU/US data transfers, for companies that subscribe to a set of data protection principles. Failing that, it is possible to argue that transfers can be justified by binding corporate rules, by individual consent or (as regards US government access to the data) by a third State’s public interest. But as I as I noted in my blog post on Schrems, these alternatives are untested yet in the CJEU, and are possibly subject to legal challenges of their own. Understandably, businesses would like to make a smooth transition to a new set of legally secure rules. Does the new deal fit the bill?

In the absence of a text, I can’t analyse the new deal much. But here are my first impressions.

According to the CJEU, the main problems with the previous deal were twofold: the extent of mass surveillance in the USA, and the limited judicial redress available to EU citizens as regards such government surveillance. It appears that the new agreement will address the latter issue, but not the former. There will be an ‘ombudsman’ empowered to consider complaints against the US government. While the details are unknown, it’s hard to see how this new institution could address the CJEU’s concerns completely, unless it is given the judicial power to order the blocking and erasure of data, for instance.

Furthermore, there’s no sign that the underlying mass surveillance will be changed. Here, the argument is that the Court of Justice simply misunderstood the US system, or that in any event many EU countries are just as wicked as the USA when it comes to mass surveillance. These arguments are eloquently set out in a barrister’s opinion, summarised in this (paywalled) Financial Times story.

Facebook and the US government disdained to get involved in the Schrems case, and have no doubt repented this at leisure. The assumption here appears to be that they would participate fully in new litigation, and convince the CJEU to see the error of its ways.

How likely is this? It’s undoubtedly true to say that the CJEU gives an increasing impression that it willing to bend the rules, or double up on its own case law, in order to ensure the survival of an increasingly beleaguered EU project. In Pringleand Gauweiler, it agreed with harshly criticized plans to keep monetary union afloat. In Dano and Alimanovic, it qualified its prior case law on EU citizens’ access to benefits, in an attempt to quell growing public concern about this issue. In Celaj, it gave a first indication that it would row back on its case law limiting the detention of irregular migrants, perhaps in light of the migration and refugee crisis. The drafters of the proposed deal on UK renegotiation appear to assume that the Court would back away from even more free movement case law, if it appears necessary to keep the UK from leaving the European Union.

Once the Court reminded legal observers of Rome: the imperial author of uniform codes that would bind a whole continent, upon which the sun would never set. Now it increasingly reminds me of Dunkirk: the centre of a brave and hastily improvised retreat from impending apocalypse, scouring for a beach to fight its last stand. The Court used to straighten every road; now it cuts every corner.

Since the ‘Privacy Shield’ deal faces many litigious critics, it seems virtually certain to end up before the Court before long. Time will tell where the judgment on the deal will fit within the broader sweep of EU jurisprudence.

The draft renegotiation deal: A genuine red card? Tusk’s proposal and national parliaments

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 3 February 2016)

Dr. Katarzyna Granat, (*)

The Draft Decision of the Heads of State or Government, ‘A New Settlement for the United Kingdom within the European Union’, unveiled by Donald Tusk on February 2 2016 offers the first concrete vision of the changes to enhance the role of national parliaments under the UK’s renegotiation efforts. This note provides an analysis of the suggested changes by contrasting them with the mechanisms currently in force under the Lisbon Treaty.

Tusk’s proposal (Section C, points 2-3) envisions that reasoned opinions of national parliaments issued under Article 7.1 of Protocol No. 2 ‘on the application of the principles of subsidiarity and proportionality’ should be ‘duly taken into account’ by all institutions participating in the EU decision-making procedures. In Tusk’s proposal national parliaments may submit reasoned opinions stating that an EU draft legislative act violates the principle of subsidiarity submitted within 12 weeks from the transmission of that draft. If these reasoned opinions represent more than 55% of votes allocated to national parliaments (i.e. at least 31 of the 56 available votes; two votes for each national parliament; in the case of a bicameral parliament, each of the two chambers has one vote; votes of parliaments of member states not participating in the adoption of the act at stake are not counted), the opinions will be ‘comprehensively discussed’ in the Council. If the EU draft legislative proposal is not changed in a way reflecting the concerns of national parliaments in their reasoned opinions, the Council will discontinue the consideration of that draft.

This proposal differs from the current ‘yellow’ and ‘orange’ card schemes of the Lisbon Treaty in a number of ways concerning in particular the timeframe, applicable thresholds and the effects of these procedures.

First, under the existing provisions of the Lisbon Treaty national parliaments may submit a reasoned opinion to the Commission, EP and Council within eight weeks from the transmission of the draft legislative act (Art. 6 of Protocol No.2). Tusk’s proposal hence gives national parliaments more time for the analysis of proposals and drafting reasoned opinions. The need to extend the submission deadline is often underlined by national parliaments and this would probably be welcomed by them. (See COSAC, 24th Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny, 4.11.2015 at 22) Yet, it is unclear whether the extension to 12 weeks under Tusk’s proposal also applies to the ‘yellow’ and ‘orange’ card procedures.

Second, although the mechanism of assignment of votes to national parliaments does not change, Tusk’s proposal offers a different threshold of votes to be met by national parliaments. The ‘yellow card’ provision demands that the reasoned opinions on the non-compliance of a Commission proposal with the principle of subsidiarity represent at least one third of all the votes allocated to the national parliaments. For triggering of the ‘orange card’, applicable only in the ordinary legislative procedure, the reasoned opinions of national parliaments need to represent at least a simple majority of the total number of votes allocated to the national parliaments. In contrast, to activate the procedure proposed by Tusk the necessary threshold is 55% of the votes allocated to national parliaments. Hence out of 56 votes of national parliaments at least 19 are necessary for a ‘yellow card’; at least 29 for an ‘orange card’ and 31 to meet the ‘more than 55%’ threshold in Tusk’s proposal. The new procedure thus requires only slightly more votes than the existing ‘orange card’, which, thus far, has never been triggered successfully.

Third, the most substantial change concerns the consequences of activating the new procedure. The ‘yellow card’ involved consequences that were relatively limited: the Commission had to review the draft and then to decide on whether to maintain, amend or withdraw the draft, giving reasons for its decision (Art. 7.2. of Protocol No. 2). For the ‘orange card’, the Commission had similar choices available, but a decision to maintain the proposal required the Commission to prepare its own reasoned opinion with arguments demonstrating compliance of the act with the subsidiarity principle. The EP and the Council would then decide on the fate of the proposal taking into account the arguments on the principle of subsidiarity expressed by the Commission and by national parliaments. If subsequently 55 % of the Council members or a majority of the votes cast in the EP finds a subsidiarity breach, ‘the legislative proposal shall not be given further consideration’. (Art. 7.3 of Protocol No. 2) By contrast, Tusk’s proposal seems to omit the phase in which the Commission can respond to national parliaments and instead moves directly to the Council, which may decide not to continue the consideration of the proposal, if that is not amended to accommodate the ‘concerns’ expressed by national parliaments. Tusk’s proposal binds stopping of the legislative procedure with whether the requests of national parliaments are met, while the ‘orange card’ provided for discontinuation only if the Council finds a subsidiarity breach.

It is worth noting that important details of the procedure such as who is responsible for amending the proposal and more importantly verifying whether the concerns of national parliaments were addressed are left unspecified. Recall that in its interaction with the national parliaments the Commission has often expressed itself satisfied that the concerns of the parliaments expressed in the reasoned opinions have been addressed by the original proposal. (See House of Lords, European Union Committee, 9th Report of Session 2013-14, para 87) Nevertheless, Tusk’s proposal seems to demand a more active response from EU institutions than the ‘orange card’.

Moreover, one should note that Tusk’s proposal does not grant the national parliaments a veto power on any aspect of a Commission proposal. Tusk’s proposal mentions that the discontinuance of the legislative procedure is conditional on the non-accommodation of the ‘concerns’ expressed in the reasoned opinions, with the ultimate decision taken by the Council, and thereby away from the national parliaments.

One further interesting aspect of Tusk’s proposal is that it refers throughout to reasoned opinions on the non-compliance of proposals with the subsidiarity principle, even though in their exercise of subsidiarity scrutiny under Protocol No. 2 national parliaments often critique issues such as the legal basis, proportionality or the political merits of a proposal, thereby going beyond strict subsidiarity review (See F. Fabbrini, K Granat, ‘“Yellow card, but no foul”: The role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike (2013) 50 Common Market Law Review, 115–143). The question is whether under Tusk’s proposal such a broad approach would also be adopted in the Council. If so, this might cause difficulties in amending a proposal in a way that properly takes account of all the different aspects raised by national parliaments and in consequence makes it also easier to stop the legislative procedure because of the lack of accommodation of the demands of the parliaments.

A broad reading of Tusk’s proposal would therefore probably be more in line with Cameron’s wish of strengthening national parliaments by allowing a threshold of national parliaments ‘to stop unwanted legislative proposals,’ although Cameron underlined also that the EU must commit to a full implementation of the subsidiarity principle. (Letter of D. Cameron to D. Tusk, 10. November 2015 at 4) A more specific answer to the latter issue might be the proposed draft declaration ‘on a subsidiarity implementation mechanism and a burden reduction implementation mechanism’ obliging the Commission to create a mechanism for the review of existing EU legislation for its compatibility with the subsidiarity and proportionality principles with an aim to provide ‘full implementation’ of subsidiarity. (EUCO 7/16)

Last point: the fact that the tabled proposal demands a discussion in the Council could also mean that depending on the relationship between parliaments and their governments represented in the Council, the ministers might show more or less flexibility with the ‘concerns’ of their national parliaments and whether a consensus on stopping or continuing with the legislative procedure could be achieved.

Finally, recall that the rejected ‘red card’ proposed in the Convention on the Future of Europe aimed at a two-third majority of national parliaments that would require the Commission to withdraw its proposal (CONV 540/03, 6.02.2003, p. 3). In comparison, Tusk’s proposal has a lower threshold and does not imply an immediate stopping of the legislative procedure. It could be hence described as a ‘red card light’ and as way of finding a compromise solution without threatening to disrupt the EU legislative procedure.

(*)  Junior Research Fellow & Marie Curie Fellow, Durham Law School