Bargaining Chips No More: The Status of EU and UK citizens after Brexit

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

Introduction

Today, the results of an inquiry into the status of EU citizens in the UK after Brexit, set up by the NGO British Future, are released. I was a member of the panel of that inquiry, which sought to bring together supporters of both the Leave and the Remain side, from different political parties and from outside Parliament as well.

This blog post has three related objectives: a) to set out and defend the main recommendations of the inquiry regarding EU citizens in the UK after Brexit; b) to set out my own recommendations for what should happen to UK citizens in the EU after Brexit; and c) to discuss the idea (floated recently) of ‘associate citizenship’ of the EU for UK citizens after Brexit. Just to make clear, the second and third points were outside the remit of the British Future inquiry – but I think it makes sense to look at those issues in parallel today. Obviously, the comments here on the latter two points are mine alone, and my views on them are not necessarily shared by any of the other people on the panel.

Results of the Inquiry: Recommendations on EU citizens in the UK

The basic starting point of the inquiry is that EU citizens who were in the UK exercising rights on the basis of EU law before a cut-off date should retain their rights after Brexit. This was the explicit position of many senior people on the Leave side during the referendum campaign, and necessarily also reflects the views of those on the Remain side, who were advocating the continued application of EU free movement law to the UK.

It is also consistent with the international law principle of ‘acquired rights’ in international law. It’s unlikely that this principle could, by itself, ensure enforceable protection of specific individual rights in British law, for the reasons explained by Professor Douglas-Scott. However, the UK certainly ought to act to give practical effect to this principle. Equally, the proposal takes account of the barriers to expelling many EU citizens imposed by human rights law, discussed by Matthew White here.

Quite apart from legal considerations and political promises, it would give effect to basic ethical principles of humanity and fairness: it would be morally wrong to disrupt the lives of people who came to the UK legally and have contributed a great deal to it. Their anxiety and uncertainty about the future should be alleviated as soon as possible.

Our recommendation would in effect create a special ‘ex-EU’ status for EU citizens who were resident in the UK before the cut-off date. Those who were already entitled topermanent residence status as of the cut-off date would keep that status (or their entitlement to apply for it). Those who were resident in the UK as of the cut-off date, but who had not yet earned entitlement to permanent residence status could still obtain it over the next five years. Those who first arrive after the cut-off date would be entitled to invoke EU free movement law in the UK until Brexit Day, after which point they would switch to ‘ordinary’ UK immigration law status, whatever that might be. (It remains to be seen whether the EU and the UK negotiate some agreement on immigration issues, which might entail a preferential status falling short of free movement of people, after Brexit).

Ex-EU status for EU citizens in the UK would entail keeping all the same rights they would have had if the UK had stayed in the EU, in terms of access to employment and equal treatment. There are several advantages to this approach.

First of all, this approach would be easy to reciprocate on the EU side, for UK citizens living in the EU (more on that below). Secondly, it would be easier to administer: forcing all EU citizens in the UK to apply for a completely new distinctly British status would cost a fortune, and it would take years to process all the applications. Having said that, there will be some difficulties of implementation in practice, although some complications are unavoidable no matter what approach is taken to this issue. The report of the inquiry makes some detailed suggestions about how implementation could work.

Thirdly, the proposed approach would come with built-in legal clarity, since the rules governing EU free movement law are already the subject of EU legislation and many court judgments. Finally, it would be consistent with the government’s plans for a ‘Great Repeal Act’, which will keep EU law on the British statute book until Parliament (or, if given power, the executive) decides to amend or repeal it.

We chose a cut-off date of the official start of the process of leaving the EU. This is earlier than Brexit Day, on the basis that people that come after the notification date cannot expect to enjoy EU free movement rights in the UK indefinitely after Brexit Day. However, it is later than the referendum date, on the basis that EU citizens who arrived before the process of leaving the EU officially began should not be prejudiced.

Finally, why recommend that the UK act unilaterally, before the EU guarantees the status of UK citizens in the EU? Firstly, because of the principles of humanity and fairness discussed above: EU citizens in the UK should be regarded as ends and not means, and certainly not as bargaining chips. Secondly, because a principled position taken unilaterally by the UK could reduce the political tension on this issue, and make it easier to reach a bilateral agreement once talks start. If it adopts our recommendations as regards the position of EU citizens in UK law, the UK government could and should point out that it expects the EU side to agree to the same principles, particularly given that our recommendation would be easy for them to reciprocate.

UK citizens in the EU

So far, the EU has refused to negotiate on the status of EU and UK citizens post-Brexit, because the UK has not yet officially notified its intention to leave the EU. While it is unfortunate that negotiations have not already started, those who condemn the EU for its position but who also voted Leave should reflect that it was their vote that threatened the status of the people concerned in the first place.

Once Brexit negotiations begin, hopefully the negotiators will tackle this issue first and aim to reach early agreement on it, so that the people affected can make firm decisions about their future and administrations can prepare to implement the rules in practice. In principle, it should be easy to reach agreement, if both sides aim for a reciprocal ‘ex-EU’ status. Since the issue logically falls within the scope of Article 50 TEU, as an issue to be agreed as part of the Brexit process, it should not be necessary to get unanimous agreement of Member States or to subject the deal to national ratification by Member States (the Article 50 deal can be approved by a qualified majority of Member States in the EU Council).

As I suggested on the day after the referendum, it would be best to have rules in the withdrawal treaty on this issue which are legally binding, define the exact scope of the rule, can be supplemented by further joint measures if needed, and must be fully applied in further detail in national law. I suggested some wording for the Article 50 treaty (now amended to make clear that non-EU family members of UK and EU citizens are covered):

  1. Any citizens of the UK residing in the EU as of [Brexit Day] and their family members, and any EU citizens residing in the UK as of that date and their family members, shall retain any rights which they acquired pursuant to EU free movement law before that date. They shall also continue to acquire rights which were in the process of acquisition as of that date.
  1. The parties shall give full effect to this principle in EU or national law, as the case may be.
  1. The EU/UK Joint Committee may adopt further measures to implement this rule.

The British Future report describes how the UK could implement such a legal obligation in its law. The EU side could best implement its corresponding legal obligation in the form of a short Regulation or Directive setting out general rules on ex-EU status, making consequential amendments to other EU laws. Later EU laws can then cross-refer to this basic law and/or the Article 50 deal.

Associate EU citizenship  Continue reading

CS and Rendón Marín: Union Citizens and their Third-Country National Parents – A Resurgence of the Ruiz Zambrano Ruling?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS


by Maria Haag, PhD Researcher, European University Institute (Florence, Italy) & Michigan Grotius Research Scholar, University of Michigan Law School (Ann Arbor, Michigan)

Background

Five years ago, the CJEU delivered its infamous Grand Chamber decision in C-34/09Ruiz Zambrano. It held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (para 42, emphasis added). This ‘genuine enjoyment’-protection had two consequences. First, Union citizens could rely on Article 20 TFEU against their Member State of nationality without having previously made use of their rights to free movement and thus bypassing the Court’s general lack of jurisdiction in ‘purely internal’ situations. Secondly, Member States were precluded from denying a right of residence to third-country national (‘TCN’) parents or caretakers of minor citizens of that Member State, as these children would otherwise be forced to leave the territory of the EU and thus no longer able to make use of the rights granted by Union citizenship.

Shortly after the delivery of this ground-breaking judgment, the Court of Justice proceeded to interpret Ruiz Zambrano very narrowly in a series of cases (C-434/09McCarthy, C-256/11 Dereci and Others, C-40/11 Iida, C-356&357/11 O. and S., C-87/12Ymeraga and Others, C‑86/12 Alokpa and Moudoulou and C-115/15 NA) leading many to wonder about the original significance of the Ruiz Zambrano decision. In contrast to Ruiz Zambrano, these subsequent cases mostly concerned the significance of Article 20 TFEU in a host Member State. The Court held that the applicants fell outside the scope of Article 20, even if they had never moved to another Member State, i.e. had been born in a Member State other than their Member State of nationality and had never left. The most recent cases – C-304/14 CS and C-165/14 Rendón Marín – however, Ruiz Zambrano decision, fully address the right under Article 20 TFEU in the home Member State. On the 13th of September 2016, the Grand Chamber delivered these two decisions in which it considered the effect of a criminal record of a TCN parent on his or her derived residence right under Article 20 TFEU and to what extent this right can be derogated on grounds of public policy or public security.

C-304/14 CS: facts and judgment

The case in CS concerned a Moroccan national, who resided in the UK together with her British national son. In 2012, she was convicted of a criminal offence and given a prison sentence of 12 months. Following her conviction, she was notified of her deportation liability. Her subsequent application for asylum was denied. Upon her appeal, the First-tier Tribunal (Immigration and Asylum Chamber) found that her deportation would violate her child’s rights under Article 20 TFEU. The Home Secretary was granted permission to appeal this decision before the Upper Tribunal, which asked the CJEU, under which circumstances the expulsion of a TCN caretaker of a Union citizen could be permitted under EU law and whether Article 27 and 28 of the Directive 2004/38 (the ‘citizens’ Directive’, which sets out the main rules on EU citizens who move to another Member State) had any effect in this case.

In its two-part decision, the Court firstly answered the question whether a TCN parent of a Union citizen has a derived right of residence in the home Member State under Article 20 TFEU and, secondly, if such a right can be limited on grounds of public policy or public security.

The Court first firmly restated its holding in Ruiz Zambrano. It explained that Article 20 TFEU “precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens” (para 26; citing Ruiz Zambrano para 42). Furthermore, this means that “a right of residence must … be granted to a third-country national who is a family member of [a minor Union citizen] since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right that citizen would be obliged in practice to leave the territory of the European Union as whole” (para 29). CS thus had a derived right of residence under Article 20 TFEU in her son’s home Member State.

Secondly, the Court held that, as a general rule, such a derived residence right can be derogated for reasons of public policy or public security: “where the exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security … that decision could be consistent with EU law” (para 40, emphasis added). However, a deportation decision cannot be made “automatically on the basis solely of the criminal record of the person concerned” (para 41). Thus the UK legislation at issue, which obliges the Home Secretary to make a deportation order of any non-national who is sentenced to a period of imprisonment of 12 months or more, establishes “a systematic and automatic link between the criminal conviction of a person … and the expulsion measure” (para 44) and therefore violates EU law. Instead, it is for the national courts to weigh up “the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation” (para 42, emphasis added).

Furthermore, derogations for reasons of ‘public policy’ or ‘public security’ must be interpreted strictly and decisions are subject to review by the EU institutions (para 37). Lastly, and most notably, the assessment of the individual situation must take account of the principle of proportionality and the rights protected in the Charter of Fundamental Rights of the European Union (‘CFREU’), especially Article 7 on the right to respect of private and family life and Article 24(2) on the obligation of consideration of the child’s best interests (paras 48 and 49).

C-165/14 Rendón Marín: facts and judgment

The facts in Rendón Marín are very similar to the ones in CS and essentially raise the same question, presumably why the Court decided these cases on the same day and why Advocate General Szpunar did not give separate opinions in these cases, but combined the two. Rendón Marín concerned a Colombian national father, who lived in Spain together with his Spanish national son and his Polish national daughter. His application for a residence permit was rejected due to his criminal record. The crucial difference between the facts of the two cases is that Mr Rendón Marín has a Union citizen daughter who lives in a host Member State and a son who lives in his home Member State. There thus exists a cross-border element in the situation of his daughter, but not in his son’s (For further discussion on the cross-border element, see C-200/02Zhu and Chen, especially para 19.).

The part of the Court’s decision concerning the son’s circumstances – a Spanish national in Spain – is almost identical to the Court’s judgment in CS. In fact, some of the paragraphs can be found in exactly the same wording in both decisions (the two cases also had the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marínmentioned the possibility of moving to Poland, as this is the Member State of nationality of Mr Rendón Marín’s daughter. Whilst the Court noted the applicant’s objection that the family had no ties to Poland, it did not go into this discussion. (See, in contrast, footnote 109 in Advocate General Szpunar’s Opinion in CS and Rendón Marín. For more on this, see also Advocate General Wathelet’s Opinion in NA, paras 112-117.) Here the Court simply holds that “it is for the referring court to check whether … the parent who is the sole carer of his children, may in fact enjoy the derived right to go with them to Poland and reside with them there” (para 79, citing Alokpa and Moudoulou paras 34-35). The Court therefore did not deny that moving to Poland could be a possible solution in case of the father’s deportation from Spain.

As for the legal status of the daughter, the Court held that, as a Polish national and Union citizen, she could rely on Article 21 TFEU and the Directive 2004/38 to grant her a right of residence in Spain (para 44). Furthermore, the Court stated that if the daughter fulfils the conditions laid down under Article 7(1) Directive 2004/38 (i.e. having sufficient resources and comprehensive health insurance) then the derived right of residence of Mr Rendón Marín, her father and sole caretaker, cannot be refused (para 53). Whilst this derived right of residence can be limited for reasons of public policy or public security (para 57), EU law precludes such limitations on “grounds of a general, preventive nature” (para 61). Instead, it is for the national courts to do a similar weighing-up exercise as laid out in CS (see Rendón Marín, paras 59-66). Derogations from derived rights of residence on the basis of Article 20 TFEU and Article 21 TFEU thus presumably have to withstand the same test.

Comment

After a longer period of silence on this issue, the Court in these cases seems at the very least willing to explore the scope of Ruiz Zambrano. (The Court should soon decide another case, Chavez-Vilchez, which raises some further important questions about the scope of that judgment). The two recent judgments, whilst they in some sense appear to diminish the scope of Ruiz Zambrano even further, can also be seen as a restatement of the fundamental significance of the original judgment.

The cases following the Ruiz Zambrano decision made it very clear that protection under Article 20 TFEU is only applicable to a very small number of people in “very specific situations” (Rendón Marín para 74; CS para 29): essentially only to minors who reside with their TCN parents in their home Member State. CS and Rendón Marín both confirm this, but also clarify that a very high level of protection is granted to those Union citizens who fall within the scope of the ‘Ruiz Zambrano-protection’. In fact, the substantive protection against expulsion is equivalent to that of EU citizens (and their family members) who move to another Member State (the Court refers to concepts found in the EU citizens’ Directive and its predecessors, as well as relevant case law), although it is not clear if the same procedural protection applies.

The Court certainly does not exclude the possibility that “in exceptional circumstances” (CS para 50) a criminal and dangerous parent who poses a threat to a Member State’s public policy or public security could be deported. Even if this means that his or her Union citizen children are forced to leave EU territory and thus deprived of the genuine enjoyment of their EU citizenship rights. Nevertheless, the Court insists on a very stringent test before such a decision can be taken.

Most notably, the Court refers to the EU’s Charter of Fundamental Rights and stresses the fact that a deportation decision needs to take account of Article 7 and Article 24(2) of the Charter (see CS paras 36 and 48; Rendón Marín paras 66 and 85). In Dereci, the Court had previously held that “if the referring court considers … that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter” (Dereci, para 72). In that case the Court had decided that the circumstances fell outside the scope of EU law, and that it was therefore beyond its jurisdiction to consider a violation of the Charter. In both CSand Rendón Marín, the Court found that the applicants’ circumstances fell within the scope of EU law and thus that the Charter applied.

It is also interesting to compare the protection granted in C-135/08 Rottmann against the deprivation of the legal status of Union citizenship altogether and the protection granted in CS and Rendón Marín against being deprived of the genuine enjoyment of the Union citizenship rights by means of a parent’s expulsion to a non-EU state. Whereas in Rottmann, the Court held that a decision to withdraw someone’s nationality needs to respect the principle of proportionality (Rottmann, para 59), in CS and Rendón Marín it established a list of criteria that need to be observed. Curiously, the Rottmann-test therefore appears to be narrower than the one established in CS and Rendon Marin, even if the potential outcome in circumstances like Rottmann, i.e. statelessness, might be much more serious for the individual concerned.

In its decision in CS, the Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands. The EU Court states in paragraph 49:

“[A]ccount is to be taken of the child’s best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the Member State concerned and the extent to which he is dependent on the parent (see, to this effect, ECtHR, 3 October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819, §118).”

Jeunesse v. the Netherlands, which was decided by the Strasbourg court in 2014, concerned a Surinamese national, who lived with her Dutch national husband and children in the Netherlands without a valid residence permit. The applicant argued that the refusal to allow her to reside in the Netherlands infringed her right to respect of her family life under Article 8 ECHR. The facts of this case are very similar to the ones inDereci, in which the Court of Justice held that such a denial of residence right did not conflict with EU law. The ECtHR, however, came to the conclusion that the Dutch authorities had failed “to secure the applicant’s right to respect for her family life as projected by Article 8 of the Convention” (Jeunesse v the Netherlands, §122).

So what does the reference to this judgment mean? First and foremost, the CJEU clarifies and stresses the utmost importance of taking account of the children’s best interests in these deportation decisions. Secondly, it signals the Court’s commitment to taking the fundamental rights of those who fall within the Ruiz Zambrano-protection very seriously.

Finally, the fact that the Court treats the situation of the daughter and the son separately in Rendón Marín reaffirms the Court’s findings in previous cases that a Union citizen in a host Member State first has to rely on Article 21 TFEU before Article 20 can be applied. In the NA judgment, which the Court delivered at the end of June 2016, it held that one first has to examine whether the citizen and their TCN caretaker have a right of residence under secondary EU law. Only if there is no such right, can Article 20 TFEU apply.

The NA case concerned a Pakistani national mother who lived in the UK with her German national children where she was refused a right of residence. The Court decided that because it had already held that both the children and their TCN mother had a right of residence in the host Member State under Article 12 of Regulation No. 1612/68 (paras 52-68), which guarantees children of current and former workers the right to access to education in the host Member State, with corollary residence rights for those children and their parents (for more, see CJEU decisions in C-480/08 Teixeiraand C-310/08 Ibrahim). Article 20 TFEU did not confer a right of residence in the host Member State. It is clear that the protection under Article 20 TFEU is one of last resort. Whilst the Court in NA and Rendón Marín does not directly rule out the possibility that the Ruiz Zambrano-protection might apply in a host Member State, it now almost seems impossible. It appears that that protection can only be granted by the home Member State.

Will UK citizens have to pay to visit the EU after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Following a Guardian article on Saturday, and the Home Secretary’s confirmation on Sunday, it’s clear that the EU is planning to institute some kind of Electronic System of Travel Authorisation (ESTA) in future, which could well apply to UK citizens visiting the EU after Brexit. I’ll examine the background, context and consequences in this post.

Background

What is an ESTA?

First of all, let’s establish what an ESTA is not. It’s not a means of regulating longer-term migration as such, although there is an indirect link between long-term migration rules and ESTA systems, as discussed below. Rather it’s a means of regulating short-term visits for tourism or other reasons.

Nor is an ESTA a tourist visa. A lot of people have confused it with one, perhaps because a Guardian sub-editor initially put an inaccurate headline on the original story (I see the online headline has since been corrected). A tourist visa is a bigger hassle for visitors than an ESTA, since travellers must visit a consulate or pay an agency to handle their application. It entails higher fees and a longer waiting period, and probably a bigger risk of rejection.

During the Brexit referendum campaign, the prospect of a visa regime between the UK and EU was not raised by the Leave side generally. However, it was raised by a junior minister, Dominic Raab, and at the time I trashed the idea here. Since then, Theresa May has shown sufficient judgment to return Raab to the backbenches, so hopefully we have heard the last of this idea for a while.

So what is an ESTA? It’s a way of gathering travellers’ information in advance of travel, usually for citizens of countries subject to a visa waiver, for instance the USA and Japan. In fact, the best-known example of an ESTA is the American version, although there are several other countries with one.  If a traveller fails to complete an ESTA in advance of travel, they will likely be denied boarding or admission at the border.  The US version includes a fee for administration and tourism promotion. Usually the form is completed, and the fee paid, online. It’s recommended to complete the ESTA form several days in advance, although on my last trip to the USA, I did it just before dashing out of the house to catch my plane. (I am not suggesting this as best practice).

The EU context

The EU has been considering an ESTA for a while. It would form part of the Schengen system of standardised external border controls, which are paralleled by the abolition (in principle) of internal border controls between Schengen States. The Schengen states comprise all the EU countries except Ireland – although Romania, Bulgaria, Cyprus and Croatia do not fully participate yet – plus four non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

A key feature of EU law in this area is that the Schengen system interacts with EU free movement law. So because the UK and Ireland have signed up to the free movement of EU citizens as EU Member States, their citizens are fast-tracked across the Schengen external borders. The same is true of the Schengen associates, because they have all signed up to free movement of their citizens with the EU as well.

Other non-EU citizens are subject to more intensive checks at the Schengen external border, as set out in the Schengen Borders Code. There’s a simple reason for this: they don’t have an underlying right to stay in the country, whereas citizens of EU Member States and the Schengen associates do – subject to exceptions. There are also distinctions between non-EU countries: some (like the US or Canada) have a visa waiver from the Schengen countries, while others (like India and China) don’t.

An ESTA was first discussed in a Commission discussion paper back in 2008. This was followed up by a very detailed study in 2011 which recommended against the idea, after which the Commission dismissed it.  In 2013, the Commission decided instead to propose an entry-exit system, which would record the movements of non-EU citizens (besides the Schengen associates) into and out of the Schengen external borders. Discussions on that proposal moved slowly, and the Commission proposed a new version of it in spring 2016. The intention is to agree on this system by the end of the year, although it will take several years afterward to get the system up and running in practice.

At the same time, the Commission revived talk of a possible EU ESTA, in a discussion paper on EU information systems. This excited many Member States, as can be seen by a Dutch EU Council Presidency paper published in the spring, which argued that the system could be a quid pro quo for visa waivers with countries like Ukraine and Turkey. Now the idea is on the agenda for the summit of the ‘EU27’ (ie the EU without the UK) to be held this week. It is being pushed by France and Germany in particular. Surely only a cynic would link this to the upcoming elections in those countries…

Consequences

Like the entry-exit system, an EU ESTA would take some time to set up. The details of how it would work would remain to be determined: the Commission is due to make a proposal this autumn, which would then be agreed by the Council (only Schengen States get a vote, so not the UK) and the European Parliament. So it might not follow the US model exactly, in terms of fees or the link to the broader border control system, or the two-year period of validity.

For one thing, some of the EU documents suggest an EU ESTA will apply at external land borders, whereas the US system does not. Also, some EU papers suggest an ESTA will be used as a method of screening people and denying them entry in advance, while others refer to it simply as generating information for border guards to use to speed up their work. It’s not clear whether an ESTA would apply to those UK citizens who live in the EU already, if they (for instance) visited the UK and then returned to France.

But it does seem very likely that it will apply to all non-EU countries which don’t have a treaty on free movement of citizens with the EU. This would follow the existing model of the Schengen Borders Code, the Schengen Information System (which includes data on non-EU citizens to be refused entry) and the proposed entry-exit system. It’s simply common sense: fast-track entry at the border for those who are not subject in principle to immigration controls, but scrutiny at the border (or in advance of it) for those who are.

It’s been suggested that the application of an EU ESTA to the UK would be an act of ‘spite’. This is simply ridiculous. If a country leaves the EU, it leaves behind both the pros and cons of membership. In short: divorce doesn’t come with bed privileges.

Many on the Leave side argued that the UK should leave the EU and then stop applying free movement law, so that it could exercise more control over EU citizens at the border. Applying an EU ESTA to UK citizens would just be exactly the same principle in reverse. Equally UK citizens would no longer be fast-tracked at Schengen external borders, would be subject to the EU entry-exit system and (for a few) would be listed in the Schengen Information System as people to be denied entry into any Schengen State. This isn’t ‘scaremongering’: it’s simply a description of existing and proposed EU law.

So will the UK be subject to an EU ESTA after Brexit? The obvious way to avoid it (and the other forms of stepped-up border control) would be to conclude a deal on free movement of persons with the EU (this need not mean joining Schengen). Arguably even a free movement deal with derogations – for instance, limiting the numbers of EU citizens who can work in the UK in some way – could justify an exemption from stepped-up border controls, as long as those UK controls are not applied at the border. I can foresee the counter-argument that ‘the EU will never negotiate an exception to free movement of people’; but has it occurred to anyone that this might simply be a negotiating position?

If an EU ESTA does end up being applied to UK citizens, the UK could reciprocate with a system of its own, applied to EU visitors. But this doesn’t rule out some form of deal on immigration flows between the UK and the EU, which could be agreed in return for continued UK participation in the single market.  The mere existence of a UK ESTA – perhaps accompanied by some other form of immigration safeguard on EU citizens – might arguably go some way to satisfying those who want additional border controls. It could be accompanied by further mutual sharing of data on serious convicted criminals, for use in the ESTA process. Latvia’s daft decision to release a convicted murderer after only a few years in prison should not have had tragic consequences in the UK, or any other Member State.

Extradition to non-EU countries: the limits imposed by EU citizenship

ORIGINAL PUBLISHED ON EU LAW ANALYSYS 

Steve Peers

One of the best-known EU laws created the European Arrest Warrant (EAW), which replaced the prior rules governing extradition between Member States. But on the other hand, in principle EU law has nothing to do with extradition to non-EU countries, except where the EU has agreed a treaty on this issue (as it has with the USA and Norway and Iceland), or as regards asylum-seekers (the EU’s asylum procedures law limits their extradition to their country of origin, because it’s necessary to determine first if the country which seeks to prosecute them is in fact persecuting them).

Yesterday’s CJEU judgment in Petruhhin altered this legal position. EU law does apply to such issues, and the Court clarified some relevant issues while leaving others open. Furthermore, the judgment raises the question of future UK/EU relations on extradition following Brexit.

Background

Extradition between the EU and non-EU countries is governed by a combination of national law and bilateral and multilateral treaties – most notably the Council of Europe Convention on Extradition, which has been ratified by all 47 European countries plus three non-EU countries. There are four further Protocols to this Convention, which have been ratified by fewer States.

A key feature of extradition law is that in principle most States will not extradite their own citizens, although within the EU, the EAW law has overruled any absolute ban on surrendering nationals as between Member States. While the refusal to extradite citizens could run a risk of impunity if those citizens commit criminal offences in another country, most States avoid that risk by extending their criminal jurisdiction to cover acts of their citizens committed outside their territory. In fact many EU laws and international treaties require States to assert such extraterritorial jurisdiction as regards specific transnational crimes.

The EAW law says a little about possible conflict between EAWs and extradition requests from third countries. It states simply that in the case of such a conflict, the national authority should decide which takes priority ‘with due consideration of all the circumstances’, including the relevant treaty and ‘the relative seriousness and place of the offences’, the relevant dates of the requests and whether the extradition request or EAW aims to obtain custody of a fugitive for trial or to serve a sentence already imposed.

This compares with the original proposal for the EAW law, which always gave priority to an EAW if the extradition request came from a country which was not party to the Council of Europe Convention. That clause was dropped following intensive lobbying from the US government, while the law was being negotiated in autumn 2001 (the EAW law was largely motivated by the 9/11 terrorist attacks, although it is not limited to terrorist offences).

Judgment

The Petruhhin case concerned an Estonian citizen sought by the Russian government for prosecution for organised crime offences. He was safe from extradition to Russia as long as he stayed in Estonia, since that country will not extradite its nationals outside the EU. But at one point he was arrested in Latvia, which decided to implement the Russian request. While Latvia also refuses to extradite its own citizens outside the EU, an Estonian citizen prima facie obviously cannot rely on that protection.

So Mr Petruhhin tried to rely on his transnational form of citizenship instead, arguing that since he was an EU citizen in another Member State, he was entitled to equal treatment with Latvians – therefore protecting him from extradition from Latvia to Russia, just like them. (Logically if his argument had worked, he would also be protected from extradition from any other Member State which refuses to extradite its own citizens to Russia).

The CJEU ruled first of all that the despite the absence of EU law on this issue, the dispute fell within the scope of EU free movement law, since Mr Petruhhin was exercising free movement rights. Therefore he had a right to equal treatment with nationals of Latvia in principle. However, a breach of that equality right could be justified on the grounds of avoiding impunity from prosecution for alleged criminal offences: Latvia, like most States, extends its criminal jurisdiction to cover acts of its own citizens abroad, but not the acts of citizens of other countries abroad. This distinction between the position of Latvians and citizens of other Member States can justify different treatment as regards protection from an extradition request.

Having said that, the Court added a crucial rider. To limit the effect of its ruling upon free movement rights (the proportionality principle), it ruled that Latvia has to contact the Estonian authorities first, to see if they wish to prosecute him there on the basis of theirextraterritorial jurisdiction, before handing him over to Russia. That’s an important proviso, as many people believe they are more likely to be treated fairly in the courts of their own State. At any rate, this likely means they will have access to defence and court proceedings in their own language, with any pre-trial detention closer to friends and family.

Finally, the Court stated that any extradition to Russia was subject to the ban on torture or other inhuman or degrading treatment set out in Article 4 of the EU Charter of Fundamental Rights, which transposes the standards set out in Article 3 ECHR and the relevant case-law of the European Court of Human Rights on this issue. That means that if there’s a real risk of such treatment in Russia, the fugitive cannot be extradited there in any case. It should be noted that the Charter equally bans extradition to face the death penalty.

Comments

First of all, the Court was correct to assert the link between EU free movement law and extradition to third States, although its rather abstract reasoning could be improved upon. The best argument supporting this part of the ruling is rather that Mr Petruhhin would have been deterred from leaving Estonia for another Member State if he ran a risk of being extradited to Russia every time he left the country.

Next, would EU law also apply to cases where a Member State considers extraditing itsown citizen to a non-EU country? The question may not arise often, since as noted already, many Member States don’t do this at all. But where they do, logically the case law on citizenship of the European Union (as distinct from free movement applies). As developed since the Zambrano judgment, this prevents citizens of their own Member State from being forced outside the EU in principle, as they are thereby deprived of EU citizenship. But logically the same limits apply by analogy: extradition of citizens can be justified on grounds of preventing immunity, but that is qualified if the extraditing State subjects its own citizens to prosecution for acts committed abroad (most do, as noted already).

Third, could there be other grounds justifying extradition to a non-EU state, besides preventing impunity? This isn’t clear from the judgment. But logically the judgment would apply by analogy to cases where a fugitive has already been sentenced to a term of imprisonment. In such cases, Latvia (say) would contact Estonia to see if the latter country could take over the punishment imposed by Russia, pursuant to the Council of Europe treaty on the transfer of prisoners or another relevant international treaty.

Could there be further grounds preventing extradition to a non-EU state, besides the Charter ban on the death penalty and torture et al, and the priority for EAWs? For instance, what if the person concerned has already been tried in a Member State, or in a third State? The EU has a cross-border ban on double jeopardy, but it only applies to Member States and Schengen associates, not to countries like Russia and the USA. Extradition treaties sometimes address this issue, but don’t always cover every double jeopardy scenario. A pending case before the CJEU should clarify this issue.

Next, logically the ruling would also apply by analogy if a third Member State could apply its jurisdiction: say an Estonian in Latvia was wanted by Russia but could potentially be prosecuted or serve a sentence in France, due to an [alleged] assault against a Russian citizen in France, or a French citizen in Russia. (Some countries assert criminal jurisdiction where one of their citizens was a victim of crime).

This brings us to the issue of conflict between an EAW and an extradition request from a non-EU state. The CJEU didn’t have to comment on this issue in its judgment, because no EAW had been issued yet. But the Court’s judgment necessarily means that there is more likely to be such a conflict in future, if Estonia indeed issues an EAW. And if that happens, the new judgment implies that the open-ended conflict rule in the EAW has to give way to the primary law of the Treaties: so the Estonian EAW has to take precedence over the Russian extradition request. The Court has in effect enshrined priority for EAWs over (almost) all non-EU extradition requests, whereas the original Commission proposal, as noted above, would have given such priority only over extradition requests from non-Council of Europe states. Perhaps the Americans should also have lobbied the Court of Justice.

But then, the USA has its own extradition deal already with the EU, as noted at the outset. (The deal with Norway and Iceland has not been ratified yet). The Court says several times in its judgment that the general rules it elaborates here are without prejudice to extradition treaties concluded between the EU and third countries. Presumably it can interpret the EU/USA treaty, since it can interpret any treaties which the EU signs with non-EU states. In fact, there’s a pending case before the CJEU which asks the Court to interpret this very treaty.

Brexit?

This judgment is probably relevant for Brexit. The UK government has recently hintedthat it will seek some continuation of criminal law cooperation with the EU. There will be transitional issues with EAWs pending on Brexit Day, which the EU/UK withdrawal treaty concluded under Article 50 TEU will hopefully address. In fact there are already possible complications arising from Brexit in this area, as there are several challenges in Irelandto the execution of UK EAWs on the grounds that Brexit is coming. The CJEU may well be called on to address these issues even before Brexit Day.

For the position after Brexit, it’s undoubtedly possible for the EU to conclude an extradition arrangement with the UK, as the Court’s judgment actively encourages the EU to sign such treaties. In fact, the judgment might arguably be the basis of an argument for EU exclusive competence over extradition treaties with non-EU countries, on the basis that any Member State agreements would affect the operation of the EAW law, at least as regards EU citizens. That would mean that the UK could no longer sign extradition deals with individual EU countries, but only with the EU as a whole.

If no deal were reached, the UK and EU could fall back on the Council of Europe extradition Convention. But as I have noted before, this would mean far less extradition (and much slower extradition) as compared to the EAW.

If there were a UK/EU deal, Member States may still want to refuse to extradite their own citizens to the UK, as they have under the treaty with Norway and Iceland. But even if they are willing to extradite them to the UK, on whatever treaty basis, it may be arguable on the basis of the new judgment that they can’t, as long as the fugitive can be tried or serve her sentence in the remaining EU. And although the UK can still assist an EU Member State in prosecuting its own citizens, that will be far more expensive for the UK authorities than trying the person in the UK.

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 rulesThere 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 AlimanovicPure 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.

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 

Schengen, un coupable idéal ?

ORIGINAL PUBLISHED ON CDRE SITE (25 NOVEMBRE 2015)

par Henri Labayle, 

Les réalisations européennes servent de bouc émissaire aux crises nationales. Ce n’est pas chose nouvelle. Après l’Euro, l’espace « Schengen » de l’Union est aujourd’hui sur la sellette. Les attentats terroristes lui auraient donné le coup de grâce, après ceux de la crise des migrants. Est-ce bien réaliste, est-ce vraiment opportun ?

Les discours officiels relèvent ici de la vieille fable de la paille et de la poutre. C’est aux Etats membres eux-mêmes que le conseil du ministre de l’Intérieur français de « se reprendre » devrait être donné tant la construction de Schengen est dépendante de leur volonté. Néanmoins, le réalisme interdit l’optimisme. Ayant perdu de vue ses caractéristiques initiales, Schengen n’échappera pas à une remise en question profonde.
Le fabuleux destin de l’espace Schengen, sa « success story », enregistrent incontestablement au coup d’arrêt, dont il conviendra de mesurer l’impact réel. Il y a des explications à cela.

1. Une construction datée

Les principes de Schengen sont inscrits désormais dans les traités : abolition des contrôles aux frontières intérieures, reportés là où l’espace commun est en contact avec les pays tiers. Sont-ils toujours à la hauteur des défis ? Répondent-ils à la menace terroriste comme à la pression migratoire ? A trop raisonner à logiciel constant, on peut en douter.

Le contexte de la création de Schengen, en 1985, a été oublié. Fruit d’un accord bilatéral franco-allemand, rejoint par les Etats du Bénélux, Schengen s’inscrivait dans un paysage aujourd’hui disparu : peu de participants, ensemble homogène animé des mêmes buts. Au point d’être scellé dans une convention d’application dont la date n’est pas indifférente : 1990, au lendemain de la chute du mur de Berlin …

En attendre une réponse efficace à des défis qui n’existaient pas lors de sa conception est un peu simpliste.
Que Schengen n’ait pas été à même, en 2015, d’arrêter les flots de réfugiés remontant le ventre mou du couloir des Balkans s’explique : il a été conçu en 1990 dans la logique d’un continent fermé, d’une Europe coupée en deux par le rideau de fer, ignorant les 7700 kilomètres de frontières terrestres devenues les siennes aujourd’hui. Figée dans une problématique Nord/Sud, l’Europe de l’époque n’avait aucune idée de la dimension Est/Ouest qui s’y est surajoutée.
Le contexte géopolitique de l’époque le confirme. L’environnement de Schengen était fait de l’Union soviétique de Gromyko au Maroc d’Hassan II en passant par la Tunisie de Ben Ali et la Libye de Kadhafi, sans parler de la Syrie ou de la Yougoslavie de Tito. Les dictateurs qui l’entouraient étaient ses meilleurs garde-frontières et la vague migratoire de 2015 inimaginable …

L’argument vaut aussi en matière terroriste. Oubli ou mauvaise foi des partisans d’un retour aux frontières nationales, celles-ci font obstacle à la lutte anti-terroriste. D’ETA réfugié en France à l’IRA en République d’Irlande ou à la bande à Baader en France, les exemples ne manquent pas. Leur maîtrise nationale empêcha-t-elle la vague d’attentats des années 80 en France ? Evidemment non.
Pour autant, « l’obsession » de la frontière justement décrite par Michel Foucher n’a pas disparu. En fait, Schengen se borne à déplacer le lieu où la frontière joue toujours son rôle de barrière, de protection. Il est un compromis entre l’ouverture d’un continent, notamment pour des besoins économiques, et sa fermeture, pour des raisons sécuritaires.

La crise de 2015 met ouvertement en question l’équilibre de ce compromis, sa capacité à assumer la fonction sécuritaire de la frontière commune. Les Etats, en trente ans, l’ont construit et maintenu envers toute logique, d’où leur responsabilité centrale.

2. Des compromis boiteux

Habillé d’un prétexte sécuritaire, ce que l’on appelait à l’époque le « déficit sécuritaire », Schengen répondait en fait à une autre réalité : celle du besoin économique d’un continent asphyxié, cloisonné en Etats aussi nombreux que petits. Le marché intérieur, lancé exactement à la même période, ne pouvait s’en satisfaire.
Le détour par la case « sécurité » dissimule à peine cette vérité. Ouvrir l’espace intérieur était d’abord un impératif économique, satisfaisant les opérateurs mais plus facile à assumer en mettant en avant la lutte contre l’immigration ou le crime. La réinstauration des contrôles provoquée par la crise des attentats de Paris confirme l’impact économique de cette ouverture : retards dans les aéroports, kilomètres de bouchons sur les autoroutes aux passages frontaliers avec l’Espagne ou l’Italie… Le compromis entre mobilité et sécurité, pourtant exclusivement au cœur du projet initial Schengen, s’est réalisé au détriment de la seconde. Quitte à ignorer les aspirations des citoyens européens.
D’autant que, dans sa quête de points d’appui, la construction européenne s’est emparée de Schengen pour en faire un symbole. Curieux retournement des choses, Schengen vilipendé lors de sa création, stigmatisé parce que qualifié de « liberticide » et que « l’Europe des polices » était alors un gros mot, fut ensuite présenté comme l’acquis principal de la liberté des citoyens européens. Avant aujourd’hui d’être à nouveau accusé de tous les maux d’une intégration européenne qu’il ne réalise pourtant pas.

La vérité se cache ailleurs. A force de non-dits et de compromis étatiques, la démarche sécuritaire quasi-exclusive sur laquelle reposait Schengen initialement s’est progressivement banalisée.
Elle imposait le respect d’un certain nombre de principes. Avant toute autre chose, celui de la responsabilité de chaque Etat, garant par son sérieux de la sécurité de tous. D’où le refus initial de l’ouvrir à des partenaires jugés peu fiables, de l’Italie à la péninsule ibérique ou à la Grèce.
La logique communautaire, celle des élargissements, l’a emporté sur ce paramètre. Une prétendue « confiance mutuelle » entre Etats a été vantée dans un univers où la méfiance demeure la règle, peu sensible au credo du monde libéral.

Puisque, depuis des années, la Grèce était une passoire et ne remplissait plus ses obligations, comment s’étonner que le système ait volé en éclat au début de l’été ? Puisque, depuis des années, le système dit de « Dublin » (imaginé à Schengen) ne remplissait pas son office, pourquoi s’étonner de l’abcès de fixation ouvert hier à Sangatte, aujourd’hui à Calais ? Enfin, faute de donner un sens au mot « sanction », pourquoi l’Union européenne ne s’est-elle pas préoccupée d’une réaction vigoureuse, réservant ses foudres aux eaux de baignade et aux aides d’Etat …

Arbitrant au moyen de compromis médiocres, quand il aurait sans doute fallu établir publiquement et respecter des priorités politiques, l’Union s’est donc trouvée démunie lorsque la bise est venue, lorsque les urnes nationales et européennes se sont emplies de votes protestataires. Faisant l’aubaine de partis extrémistes dépourvus de toute réponse réaliste, elle s’est ainsi placée sur la défensive.
L’impasse faite sur la dimension économique du contrôle des frontières illustre cette absence de pilotage. Le mirage des solutions technologiques de demain, les « smarts borders » et la biométrie, ajouté au lobbying des grandes multinationales désireuses d’obtenir les marchés publics y sacrifiant, ne peut dissimuler l’aberration consistant à confier la sécurité de tous à un Etat membre, la Grèce, étranglé financièrement et budgétairement pour les raisons que l’on sait …

S’il est exact que les Etats Unis consacrent 32 milliards de dollars à leur politique migratoire dont la moitié au contrôle des frontières, comment comprendre les 142 millions d’Euros du budget de Frontex ?

Dilué, Schengen a perdu de vue l’originalité de sa charge pour être appréhendé comme une politique ordinaire. Sauf que les Etats membres n’ont en rien abdiqué.

3. Une logique intergouvernementale

Laboratoire de la construction européenne, Schengen demeure une construction aux mains des Etats.
Au prix d’une certaine schizophrénie, les Etats ont en effet prétendu à la fois intégrer leur action mais en conserver la maîtrise. Entre ceux qui voulaient mais ne pouvaient pas en faire partie (la Bulgarie, la Roumanie), ceux qui pouvaient mais ne le voulaient pas (les iles britanniques), ceux qui ne pouvaient pas mais que l’on a voulu (la Suisse, la Norvège, l’Islande) et ceux qui ne pouvaient pas et dont on aurait pas du vouloir (la Grèce), Schengen est devenu un véritable patchwork.

La greffe aurait pu prendre. Elle n’a été qu’imparfaite.
D’abord car la diversité des situations nationales n’a pas disparu. D’une part, les législations et pratiques nationales demeurent suffisamment éloignées pour que l’effet « vases communicants » ne joue pas. Migrants comme criminels ont parfaitement identifié ces points faibles. D’autre part car le degré d’attraction des Etats membres de cet espace ne s’est pas réduit, rendant inutile le souhait de responsabiliser l’ensemble. Convaincus que l’Allemagne et la Suède étaient des eldorados, les demandeurs de refuge n’envisagent pas d’autre destination, pour la plus grande satisfaction des Etats membres qu’ils traversent et qui vont jusqu’à leur faciliter la tâche.

Ensuite, parce que les Etats refusent toujours la contrainte. En indiquant clairement dans son article 4 que « la sécurité nationale relève de la seule souveraineté de chaque Etat membre », le traité sur l’Union fixe une barrière infranchissable.

Les enseignements des commissions d’enquête au lendemain des attentats de Charlie Hebdo le confirment. Le dispositif européen est moins en cause que les conditions de sa mise en œuvre. La faillite de Schengen n’est pas dans la poursuite mais dans la prévention, dans le renseignement en amont des attentats et l’alimentation des outils communs qui n’est pas obligatoire. La qualité remarquable de l’action policière et judiciaire, y compris par delà la frontière franco-belge, ne dissimule la faillite de la prévention politique et policière, des deux cotés de cette frontière.
Comment Mehdi Nemmouche hier, Abaaoud ou les frères Abdeslam cette semaine, ont-ils pu perpétrer leurs crimes sans obstacle réel, échappant aux contrôles Schengen autant que nationaux ? Qui refusait jusqu’au Conseil de vendredi dernier d’inclure les « combattants étrangers » dans le SIS et pourquoi 5 Etats seulement fournissent-ils plus de la moitié des informations sur leurs déplacements au Système d’information d’Europol de l’aveu du coordinateur européen de la lutte contre le terrorisme ?

L’absence de transparence de l’Union ne facilite pas la réponse. La responsabilité des Etats membres est pourtant au cœur de ce fiasco, constat déjà posé après Charlie Hebdo, sans réelle suite.

La France n’y échappe pas, étonne par l’arrogance de notre discours public. Des failles de son contrôle judiciaire aux pannes de son système de fichier Chéops, à sa gestion des documents d’identité, aux  erreurs de ses services de renseignements ou aux moyens alloués et à l’autisme de ses gouvernants qui qualifient de simples « complicités françaises » l’action des terroristes de Paris, elle n’est pas en situation d’administrer les leçons qu’elle prétend donner à la Belgique et à l’Union.

Celle-ci doit pourtant se remettre en question.

Quant au périmètre de son action d’abord. Malgré le politiquement correct, la composition de l’espace commun où contrôles comme échanges de renseignement s’effectuent est une question ouverte. Les Pays Bas, comme d’autres, semblent réfléchir à un redimensionnement effectué soit par un repli, sur un petit nombre de partenaires performants, soit par une mise à l’écart, de membres jugés non fiables.

Quand au fond ensuite. Les principes d’organisation sur lesquels Schengen repose, frontières intérieures/extérieures demeurent aussi pertinents qu’hier. En revanche, ils ne peuvent plus se satisfaire du vide politique actuel. La cohérence exige de percevoir l’asile comme un même devoir, réclame de criminaliser le radicalisme et le terrorisme de façon identique. Ce préalable n’est pas satisfait aujourd’hui dans l’Union. De même que la « solidarité » doit avoir un sens concret pour les Etats membres, ces derniers doivent partager l’accueil des réfugiés et privilégier la coopération et la police judiciaires et la coordination des poursuites à l’action exclusive des services de renseignement. Dans tous les cas, il faut y mettre le prix.

Alors, pourquoi n’entendons nous pas les mots de « parquet européen », « d’équipes communes d’enquête », « d’Eurojust » ? Pourquoi l’essentiel du contingent de la relocalisation est-il encore vacant ? Parce que nous n’osons pas lever le tabou de l’action commune, de la quasi-fédéralisation qu’impliquent le développement des agences se substituant aux Etats défaillants, que nous prétendons que l’administration nationale des politiques européennes est toujours l’alpha et l’oméga de la construction européenne ?

L’hypothèse de l’avancée, même si celle du repli est peu crédible sinon impossible, est donc incertaine. A l’image de celle du projet européen tout entier dont Schengen demeure bien, toujours, un « laboratoire ».