The debate over CEU and ‘the overall situation in Hungary’ in April 2017

In a statement published on 26 of April 2017, the Commission concluded that the Hungarian Higher Education Law of 4 April may be incompatible with the fundamental internal market freedoms. Therefore, the Commission decided to take legal actions and sent a formal notice to the Hungarian government.

With regard to the recent development in Hungary the EU decided not only to discuss the Hungarian Higher Education Law but the overall situation in Hungary in two meetings that took place on 12 and 26 April 2017 in the European Parliament. The following text will discuss the events that took place in April as a response to the new law.

Hungarian education law

The issue concerns the Higher Education Law in Hungary, which might threaten fundamental European Union (EU) freedoms, i.e. freedom of establishment or/and freedom to provide services. Articles 49 and 56 of the Treaty on the functioning of the European Union (TFEU) lay down rules, which prohibit Member States to hinder the exercise of the latter freedoms by State measures that target intra-community services or the right of establishment. Paragraph 2 of Article 49 TFEU provides the right for legal and natural persons to set up and manage undertakings, while Articles 56 to 57 TFEU lay down the right to provide services on a temporary basis by a person established in one Member State to a recipient established in another.

The Central European University (CEU), established after  the fall of communism in Hungary by an Hungarian-American philanthropist, offers US-accredited degrees – a crucial draw for foreign students. Firstly, the new Hungarian Higher Education Law requires foreign universities to have a campus both in Hungary and their home countries, which in fact is a measure aimed to restrict freedom of establishment. Secondly, it bans universities outside the EU from awarding Hungarian diplomas without an agreement between national governments – in this case, with the United States (US) (BBC news, 4 April 2017). While the CEU is not allowed to award US accredited diplomas, an issue for non-EU teachers to come to Hungary and teach there arises. It also restricts the CEU’s ability to choose its students, thus on the one hand hindering EU student’s right to receive services and one the other hand CEU’s freedom to provide services on regular or permanent basis to EU’s students (The Guardian, 12 April 2017).

The CEU argued that the amendments to the Hungarian Higher Education Law would make it impossible for the CEU to continue its work as an institution of higher education in Budapest.  If the CEU can not continue it would damage the Hungarian academic life and furthermore, Hungary’s relations with its EU partners and with the US. The part of the amendment which constitute a clear discrimination against CEU is, according to the CEU itself, the part which prevents Hungarian universities from delivering programs or issuing degrees from non-European universities on behalf of CEU. Another example of discrimination in the proposed amendment is the rejection of a remission that grant academic staff from non-EU countries to work at the CEU without a work permit. The amendment would create a threshold towards the recruitment. Since the CEU recruits a high number of professors from outside the EU, the new amendment would put it in an unfavorable position (CEU, 28 March 2017).

According to Renáta Uitz, a professor at the CEU, it can be argued from a constitutional aspect, that Hungary is testing the limits of the European constitutional construct by leaning on the possibility for member states to defend their national identities under Article 4(2) of the Treaty of the European Union (TEU). It is no surprise, according to her, that the new Hungarian legal measures are put in terms of national security and counterterrorism. In an era of global terror, such measures will be recognized by both foreign observers and their governments will be sympathetic to such reasons. It is of great importance that European constitutional and political actors comprehends: “The carefully crafted new Hungarian laws use the cloak of national security to stab the rule of law, as understood in Europe, in the heart” (Renata Uitz, 5 April 2017).

The meeting of 12 April

The following text will present a press release from the European Commission released on 12 April 2017. A speech was held by first vice-president Frans Timmerman discussing legal issues relating to Hungary. Recently, there has been a development in Hungary which has resulted in worried reactions amongst stakeholders both in the EU and outside. The development mentioned above has raised questions regarding the shared values of the Union and Hungary’s compatibility with it. As mentioned above, Hungary has adopted a Higher Education Law which has raised concern in the academic community as well as amongst politicians of Europe. The newly adopted law is according to some an attempt to close the Central European University and in turn it can restrict the scientific and academic freedom of thought (Christopher Adam, ‘Hungary’s parliament votes to shut down Central European University’, in Hungarian Free Press, 4 April 2017). Furthermore, the university is one of the most important universities in higher education in Europe. The Commission stated that it  will make a legal assessment to review compatibility with the free movement of services and the freedom of establishment.

Margrethe Vestager and Vera Jourova, Commissioners for competition and gender equality, have also expressed worries that the recent events in Hungary may result in issues regarding shared European values as set out in Article 2 TEU. Apart from the education law there are also reasons for concern when it comes to migration laws in Hungary and its compatibility with EU law. Therefore, the Commission will act if there is no positive progress soon. The press release concludes with the importance of a dialogue between the Hungarian authorities and Member States, as well as the Commission and the European Parliament.

The meeting of 26 April

When the second meeting took place on 26 April the Commission had reviewed the Hungarian Higher Education Law’s compatibility with the internal markets freedoms and the Charter of Fundamental Rights and it confirmed EU’s concern. As a result of the review, the Commission decided to take action and commencing an infringement proceeding against Hungary under Article 258 TFEU by sending a formal notice, expecting Hungarian authorities to respond within a month.

The Commission’s first vice-president, Frans Timmerman, also warned the Hungarian government that other laws that has recently been proposed or adopted will continue to be on the Commission’s radar. For example, the treatment of asylum seekers in Hungary and draft legislation on registration of  NGOs have raised serious doubts about their compatibility with EU law. Furthermore, it was added that Hungary has not yet answered the EU’s concern regarding compliance with EU rules on the protection of pregnant working women and the Commission soon intents to decide on further action if Hungary does not comply with those rules (Press release – April infringement package). The same date as the meeting took place, the Commission decided to release a public answer in response to the Hungarian Government’s ‘Stop Brussels’ consultation. The Commission’s response had the intention to set the record straight with hard facts because the ‘Stop Brussels’ consultation had factually incorrect or misleading allegations. The Commission emphasized in its answers that EU is not about Brussels but ‘a project driven and designed by its Member States’.

Although, robust criticism was raised towards the Hungarian authorities in the meeting, Frans Timmerman concluded that the aim of the meeting was to seek clarification regarding the Hungarian government’s intentions and that dialogue is the European way to solve misunderstandings or disagreements. He also expressed gratitude to the Hungarian authorities that in the past always engage in dialogue with the EU and to Prime Minister Mr Orban who came to the meeting and debated the issues in the European Parliament.

Post-meeting

According to the center-right group of the European Parliament, after the debate Mr Orban told them on 29 April that he would comply with EU demands on academic freedom. At the same time, Mr Orban has said, when speaking to the domestic media, that “nobody will set condition for Hungary” and he will negotiate with the Commission in the coming months for a final result (Reuters, 29 April 2017).

As a result of the recent events, it seems that Mr Orban is in a delicate situation both within the country but also within the European political community. Recently, the president of the center-right group of the European Parliament, Manfred Weber, spoke about the new Hungarian education law, saying that “we do not accept any attacks on academic freedom.” He added that it was the responsibility of the Hungarian head of government to “present solutions and change behavior” (La Libre, 29 April 2017).

It was the result of a confrontation between Mr Orban and Joseph Daul, leader of the EPP, as well as the Presidents of the Council, the Commission and the European Parliament, Donald Tusk, Jean-Claude Juncker and Antonio Tajani, Mr Orban had to comply with the demands expressed by the Commission in its letter to the Hungarian government. According to Siegfried Muresan, the European political family firmly intends to closely monitor the actions of the Hungarian Prime Minister. Mr. Orban has recently stated that this new law, despite appearances, did not represent a threat to the CEU. Manfred Weber says that Mr Orban is open to dialogue (BBC, 29 April 2017). The European People’s Party considered that the fact that Fidesz, the ruling party in Hungary, although it might be expelled over this issue, is still part of the group is an opportunity for the Hungarians to maintain the dialogue with Mr Orban and thus be able to push him “to commit to change the legislation on universities”, according to Mr. Muresan (La Libre, 29 April 2017).

The new law gave rise to a protest movement in Hungary on 1 May. The Momentum movement, led by Andras Fekete-Gyor, organized a demonstration of support for the European Union which brought together several thousand people chanting “Europa!” And brandishing starry banners to walk against the new law, considered “Europhobic” (Le Monde Europe, 2 May 2017).

Although the Hungarian Higher Education Law is the basis for the meetings that took place during April, there are more issues in Hungary relating to its compatibility with EU values. By raising concern on one aspects it also brings light towards other problems that in the future might lead to infringement proceedings. It is interesting to see how quickly the EU responded to the new law in Hungary and how that creates a chain reactions in the political community of the EU and creates discussions in the Member States. When reflecting over the above one can see that all we know for now is that the EU has decided to launch an infringement proceeding against Hungary due to the Hungarian Higher Education Law and if it may be incompatible with EU law.

Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck and Sherimane Abdoun

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Joined Cases C-203/15 and C-698/15, Tele2 Sverige v Post- och Telestyrelsen (21 December 2016)

General background

In the joined cases C-203/15 (Tele2 Sverige AB v Post- och Telestyrelsen) and C-698 (Secretary of State for Home Department v Tom Watson and Others) of 21 December (the Joined Cases), the ECJ decided a request for preliminary ruling from the Swedish Administrative Court of Appeal (Kammarrätten), and from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). Both cases concerned the interpretation of Article 15 (1) of Directive 2002/58/EC (paras. 1-2).

On 9 April 2014, Tele2 Sverige, a Swedish provider of electronic communication services, informed the Post- och Telestyrelsen (PTS) (Swedish Post and Telecom Authority) that, having regard to the judgment in the Digital Rights Ireland and Others case (C-293/12 and C-594/12) which invalidated Directive 2006/24, it would stop to store electronic communications data. The reason for this was that, as a consequence of the Digital Rights judgment, Tele2 believed it was no longer obliged to do so under the Swedish national law (Lag [2003:389] om elektronisk kommunikation, or LEK), which implemented the now invalid Directive. On 29 April 2014, the Swedish Minister of Justice appointed a special reporter to examine the Swedish legislation at issue in the light of the Digital Rights judgment. The conclusion of the Report was that Swedish law was not incompatible with either EU law or the European Convention on Human Right (ECHR). As a consequence, the PTS informed Tele2 Sverige that it was in breach of its obligations under LEK, and ordered them to start retaining that data. Tele2 on the other hand, believed the Report was based on a misinterpretation of the Digital Rights judgment, and that the obligation under LEK was in breach of the fundamental rights guaranteed by the EU Charter of Fundamental Rights (the Charter). Therefore, Tele2 Sverige brought an action against the order of the PTS before the Administrative Court (paras. 44-48).

In the case Secretary of State for Home Department v. Tom Watson and Others, the applicants brought applications for judicial review of the lawfulness of the data retention regime in Section 1 of the Data Retention and Investigatory Powers Act of 2014 (DRIPA). They claimed that Section 1 DRIPA was incompatible with Articles 7 and 8 of the Charter and Article 8 of the ECHR. The High Court of Justice stated, on 17 July 2015, that the regime was conflicting with EU law because it did not satisfy the conditions laid down in the Digital Rights judgment. According to the Court, the Digital Rights judgment stated that ”mandatory requirements of EU law” are applicable to the Member States legislation on the retention of communications data and access to data. The National Court also stated that national legislation that contained same provisions as Directive 2006/24, which was held to be conflicting with the principle of proportionality, could not be compatible with that principle. Furthermore, the Court stated that Section 1 DRIPA is not compatible with Articles 7 and 8 of the Charter because it does not state how to get access to and use retained data. Later, the Secretary of State for the Home Department brought an action against that judgment before the referring court (paras. 52-58).

To summarise, the referring national courts requested a preliminary ruling, under Article 267 TFEU, on the following questions:

  1. Must Article 15 (1) of Directive 2002/58, read in the light of Articles 7, 8 and 52 (1) of the Charter, be interpreted as precluding national legislation that provides for, the purpose of fighting crime, general and indiscriminate retention of all traffic and location data of all subscribers and registered users with respect to all means of electronic communications? (paras. 51, 59 and 62)
  2. Must Article 15 (1) of Directive 2002/58, read in the light of Articles 7, 8 and 52 (1) of the Charter, be interpreted as precluding national legislation governing the protection and security of traffic and location data, and more particularly, the access of the competent national authorities to retained data, where that legislation does not restrict that access solely to the objective of fighting serious crime, where that access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that data concerned should be retained within the EU? (paras. 51, 59 and 114)

Decision and reasoning

On 21 December 2016, the ECJ (Grand Chamber) announced its ruling in the Joined Cases. Firstly, the Court examined whether national legislation falls within the scope of EU law (para. 64). Furthermore, the Court examined the general structure of Directive 2002/58 and argued that the legislative measures mentioned in Article 15 (1) of Directive 2002/58 concerns activities of state authorities and not individuals (para. 72). It concluded that Article 15 (1) together with Article 3 in the directive shall be seen as legislative measures that fall within the scope of that directive (para. 74).

The ECJ found that Article 15 (1) of Directive 2002/58 must be interpreted strictly, since it enables the Member States to provide for exemptions to the obligation to ensure the confidentiality of personal data (paras. 88–89). But, this does not prevent a Member State from adopting legislation permitting targeted retention of traffic and location data for the purpose of fighting serious crime, provided that the retention of data is limited to what is strictly necessary (para. 108). To satisfy this requirement, the Court stated that national legislation must lay down clear and precise rules governing the scope and application of data retention and impose minimum safeguards to guarantee effective protection of the retained data (para 109). In short, the Court found that Article 15 (1), read in the light of Articles 7, 8 and 52 (1) of the Charter precludes national legislation which provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication (para. 112).

The ECJ also found that Article 15 (1) must be interpreted as precluding national legislation governing the protection and security of traffic and location data, and access of competent national authorities to the retained data, unless it is restricted to solely fighting serious crime and that it prescribes a requirement of prior review by a court or an independent administrative authority before granting access to the data (paras. 123 and 125). Furthermore, the competent national authorities whom access the retained data must give information to those concerned (para. 121).

Comments

The ECJ shows with this new judgment its concern to ensure respect for the Charter, in particular the rights to respect for private life and protection of personal data, also proclaimed by Article 8 of the ECHR. The jurisprudence of the ECJ, which seems to act as a protector of fundamental rights of EU citizens, remains confused on two points: the wording of the contested directive, which is contradictory, and the control of proportionality. Where is the boundary between the acceptable and the unacceptable? Where does ‘targeted retention of traffic and location data’ start and where does it end? On paper the concept seems clear, however, in the reality, it is difficult to apply.

This judgment may leave an ajar door for a possible retention of data for purposes of administrative policing, when it comes to ‘preventing a serious risk to public safety’, on the condition that very strong guarantees are ensured, namely the prior control by an independent authority (para. 123) and information to those concerned (para. 121). States will have to combine the protection of the state with respect for the privacy of its citizens. (Orla Lynskey, Tele2 Sverige AB and WATSON and AL: continuity and radical change, 12 January 2017)

The Joint Case Tele2 Sverige AB highlights several interesting aspects (Gunnar Beck, Case Comment: C-203/15 Tele2 Sverige AB v Post-och telestyrelsen and C-698/15 SSHD v Tom Watson & Others, 13 January 2017). Firstly, the Court emphasizes that the data retention provisions of the Member States have to comply with EU law. Secondly, the Court repeated its ruling in the Digital Rights  judgment according to which generalized and indiscriminate surveillance is not permissible  under EU law. The retained data from every phone call, text and internet connection display information about the location, time and duration of the communication. The Court highlighted a focal point when it comes to this retained data. It stated that very precise conclusions may be drawn from it with regard to the private life of the person whose data has been retained. Thirdly, the Court accepted that data can be retained under certain circumstances. For example, in case of public interest, retained data can reveal a direct or indirect link to a serious criminal offense.  The Court lays down conditions for that national data retention laws which need to comply with EU law. The provisions of the national law must be clear and precise. In addition, they must indicate the circumstances and conditions in which data may be retained. Moreover, the retention must be ‘strictly necessary’.

Furthermore, in his opinion delivered on 19 July 2016, Advocate General Saugmandsgaard Øe drew the following conclusion: Article 15(1) of Directive 2002/58/EC concerning the privacy and electronic communications  and Articles 7, 8 and 52 (1) of the Charter are to be interpreted as not precluding Member States from imposing on providers of electronic communications services an obligation to retain all data with regard to communications effected by the users of their services if all of the above mentioned conditions are satisfied [Opinion delivered by Advocate General S on 16 July 2016, paragraph 263].

Thus, what can we learn from this case? We believe that the Court is methodical in the sense that it is more precise in its reasoning in comparison to other decisions. It enumerates the exceptions to fundamental rights guaranteed under EU law, which must be interpreted strictly. Thereafter, the Court follows its ruling in the Digital Rights  case, in which the Digital Retention Directive was declared invalid due to the fact that the EU legislation exceeded the principle of proportionality in the light of Articles 7,8 and 52 (1) of the Charter. Moreover, the Court weighs the right to data protection against the demands of public security. It then suggests that measures allowing for retaining data in some circumstances comply with the Charter.

Christofer Bjerkhoel, Nora Shoki, Anna Puck Lundgren and David Peralta

Posted in Case-law | Tagged , , , | 2 Comments

Gordon on Brexit: a challenge for the UK constitution, of the UK constitution?

In October 2016, Michael Gordon, Senior Lecturer in Law at the University of Liverpool, specialized in Constitutional law, published an article entitled  “Brexit: a challenge for the UK constitution, of the UK constitution?” in the European Constitutional Law Review. As the title reveals, the article presents two main issues, namely the possible challenges for the UK constitutional system, and whether the Constitution in itself influenced the decision to leave the EU.

Brexit as a challenge for the UK Constitution

In the first part of the article, Gordon discusses the potential consequences of the UK’s departure from the EU in the light of the UK Constitution. Some of the challenges mentioned are, e.g., the transformation of the UK’s legal system that Brexit entails, the involvement of the institutions in the Brexit process and the potential negotiations of new agreements with the remaining EU member states (pp. 410-411).

Leaving aside how interesting these issues might be, they are mainly speculative since the UK’s exit from the EU is still in a very early stage. Although, in January 2017, the UK Supreme Court ruled in the Miller case that parliamentary approval was needed in order to commence the process of exiting the EU. This ruling has provided some clarity with regard to the institutional involvement, but the remaining issues are still unclarified. Therefore, this post mainly focuses on the second question of Gordon’s article.

Brexit as a challenge of the UK Constitution

Under this part of the article, Gordon raises the question as to whether the UK constitution might have contributed to the decision to leave the EU. He places great weight on the fact that the UK does not have a written constitution, but rather an uncodified constitution under which political action is given much space. Gordon further points out that due to the “unprecedented nature” of exiting the EU, any member state wanting to leave the Union would face major constitutional challenges in the process of doing so. Nevertheless, it may be particularly challenging for the UK because of the uncodified nature of its constitution (pp. 435-438).

According to Gordon, one of the decisive factors for the outcome of the referendum, which was held in order to determine whether to remain or to exit the EU, was the UK’s concern about the immigration levels caused by the free movement commitment within the EU. Furthermore, the strong eurosceptic movement, and the fact that the concept of supranational governance can, in some aspects, be considered incompatible with the UK constitution itself could also have influenced the result of the referendum. In relation to this, Gordon also mentions other pre-existing difficulties which have given rise to tensions between the UK constitution and the supranational nature of the EU. One of them is, according to the author, that the UK constitutional mechanisms controlling governmental accountability and responsibility does not correspond well with the supranational governance of the EU. He further states that the above mentioned difficulties in the UK’s constitutional system, that already existed before Brexit, might be exacerbated due to this process (pp. 439-441).

Comments

Even if some main reasons behind the result of the referendum can be pointed out, the decision to leave the EU is the consequence of many elements and cannot be reduced to just a few ones. Having said that, one cannot disregard the influence of the strong eurosceptic movement in the UK, nor the concerns regarding immigration levels in the UK, which greatly clashed with the free movement commitment of the Union.

As Gordon points out, it is probable that the specific features of the UK’s constitution in some ways have contributed to create tensions between the UK and the EU, which influenced the UK’s decision to leave the Union. However, the author fails to fully motivate how these tensions could have affected the UK’s decision. The possible tensions between the UK constitution and the EU might have had an influence on the decision to leave. Nevertheless, one can assume that the majority of UK citizens did not consider constitutional aspects when voting. Over-emphasising such tensions would be equivalent to underestimating the political influences, and by extension also the democratic process of the result of the referendum.

Since the UK, so far, is the only country that has decided to exit the EU, it is difficult to assess the impact that its constitution may, or may not, have had on the outcome of the referendum. The “pre-existing constitutional difficulties” discussed by Gordon might also exist in the written constitutions of other member states. If other countries should decide to follow the UK, such departures from the Union would allow for comparisons of potential constitutional influences of such decisions. However, the author is entirely correct in suggesting that Brexit raises “more fundamental constitutional questions about government and governance, democracy and accountability, power and sovereignty, the national and the supranational” (p. 443).

Lara Bianchet, Nathalie Holvik, and Sahel Noroozi

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The watchdog barks, but does it bite? – A renewed push on relocation and resettlement of refugees and migrants in the EU

Background

This post is a follow up of the earlier posts on the Common European Asylum System published on this blog. It is based on a Statement from the Commission, published on 2 March 2017 concerning renewed efforts in implementing solidarity measures under the European Agenda on Migration. The European Agenda on Migration is an agenda based on four pillars to better manage migration. The four pillar are reducing the incentives for irregular migration, saving lives and securing the external borders, a strong asylum policy and a new policy on legal migration.

Since 2015, a lot of people have applied for asylum in different parts of the world. The main reason for this is the crisis and war in Syria. According to the United Nations High Commissioner for Refugees (UNHCR), 6.5 million people have fled from Syria. Because of the unexpected amount of people applying for asylum, the migration policy in the EU has been highly discussed and criticised (see earlier posts). On 2 March 2017, the Commission stated that all Member States need to ‘pick up the pace of relocation to alleviate pressure from Italy and Greece’.

The EU-Turkey Agreement, which has been discussed earlier on this blog, is an agreement which aims to end illegal migration from Turkey to the EU. The agreement came into force 20 March 2016 and includes, inter alia, a provision stating that irregular migrants crossing from Turkey to the Greek Islands will be returned to Turkey. On 2 March 2017, the Commission stated that Greece and the other Member States must continue working on the Joint Action Plan on the implementation of the EU-Turkey agreement, which is a cooperation between EU and Turkey on migration management. The objective is to improve the situation on the Greek Islands and the work of the European Border and Coast Guard Agency.

Frans Timmermans, the Commission’s First Vice-President stated, that all Member States must continue to implement a comprehensive approach. The engagement with Turkey needs to continue. Dimitris Avramopoulos, the Commissioner for Migration, Home Affairs and Citizenship stated that ‘responsibility cannot be fairly shared without solidarity’. Avramopoulos refers to the fact that the Member States need to carry through their obligations and to ensure full operational capability of the European Border and Coast Guard.

A renewed push without actual effect?

Concerning the relocation and the resettlement of migrants, the Member States are performing in various degrees with regards to their obligations. Only two Member States, Finland and Malta, are fulfilling their obligations towards Greece and Italy. However, other Member States, such as Hungary, Austria and Poland, are refusing to participate at all in the process. In addition, some Member States are meeting their obligations to a very limited extent, for example Bulgaria, Croatia and Slovakia. So far, the Member States have only provided safe pathways to 14,422 out of 22,504 persons which they have agreed to relocate. It is in this light that we must ask ourselves the critical question if the Commission’s renewed push towards implementing solidarity measures will really encourage the Member States to live up to their obligations on the issue of relocation and resettlement of migrants.

The Commission’s stance towards the Member States is quite firm. Either the Member States comply with their obligations or the watchdog of the EU will hold these naughty Member States accountable for not living up to their obligations deriving from the Council decisions. But, will the Commission’s stern approach help the migrants in the Mediterranean sea? It is evident that the Member States should participate in the relocation scheme of migrants. The principle of solidarity and fair sharing binds all Member States.

As a consequence of the Member States’ failure, or refusal, to comply with their obligations, the Commission is indeed calling for renewed efforts in implementing solidarity measures under the European Agenda on Migration. By stating it will not hesitate to make use of its powers under the Treaties for those who have not complied, the Commission shows it is firmly determined to make the Member States equally deliver our obligations. However, will this threat actually lead to the Member States complying and is this the only way forward? As Avramopoulos said, all operational preconditions to make relocation work are in place, yet only two Member States are complying with their obligations. In this case, it is not hard to argue that, although the EU officially has agreed upon how to solve this ongoing problem, it is obvious that very few Member States actually support what they have agreed upon. Therefore, if the Commission were to realize its threat, it would have to do this against almost all the Member States. In such a case, it is doubtful if the Commission is brave enough to do this or if the threat is an ‘empty threat’.

So, why are some Member States not complying with their obligation? One of the reasons for this is the conflicting interest between the EU and the Member States. While the EU has their own interest to maintain their obligations, the Member State are concerned about their national priorities. Since the Commission, which takes the interest of the EU, is the initiator of the agreement, the Member States may not feel sufficiently included in the decision-making process. Bulgaria, Hungary, Macedonia, Greece and Turkey have put up fences to hinder refugees from entering their countries, which clearly manifest some Member States’ contradicting opinions about the refugee crisis.

In addition, it is also possible that some Member States, especially those refusing to comply with their obligation at all, would prefer to be brought before the Court by the Commission and eventually be fined instead of having to relocate refugees. The relocation and resettlement of refugees is clearly a very sensitive issue for both the EU and the Member States, and although the Commission is firmly determined in implementing the solidarity measures under the European Agenda on Migration, it is not hard to argue that this renewed push is without actual effect. It seems more likely that the EU must get back to the drawing board and come up with a solution that all Member States support and, sadly enough the refugees are the ones most affected by this, not the Member States.

Christofer Bjerkhoel, David Peralta, Anna Puck Lundgren and Nora Shoki

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Case C-638/16 PPU, X and X v Belgium (7 March 2017)

General background

On 12 December 2016, the European Court of Justice (ECJ) received a request for a preliminary ruling from the Belgian Council for asylum and immigration proceedings. The case concerned a Syrian family living in Aleppo, Syria. Relying on Article 25(1)(a) of the EU Visa Code, the family applied for humanitarian visas with limited territorial validity at the Belgian Embassy in Beirut on 12 October 2016 (para 19).

According to the applicants, the purpose of applying for humanitarian visas was to allow them to enter Belgium and to seek asylum there (para 20). During the main proceedings before the Belgian Immigration Office, the applicants claimed, among other things, that one of them had been subjected to torture and abducted by a terrorist group. The applicants further emphasized the risk of persecution due to the family’s Orthodox Christian beliefs. They also claimed that the closure of the borders between Syria and Lebanon had made it impossible for them to register as refugees in neighbouring countries (paras 20-21).

On 18 October 2016, the Belgian Immigration Office rejected their applications inter alia on the grounds that the family intended to stay in Belgium longer than the Visa Code permits, and also that the situation fell outside the territorial scope of the European Convention on Human Rights (ECHR), therefore Article 3 therein could not be invoked. In addition, the Belgian Immigration Office stated that Belgian diplomatic posts are not authorised to issue entry visas in order to enable the applicants to seek asylum in Belgium. The Belgian Immigration Office reasoned that such an authorisation would be equivalent to allowing asylum applications to be submitted to diplomatic posts (para 21).

The applicants challenged the decision and the case was subsequently brought before a Belgian national court. The applicants claimed that in order to respect Article 3 ECHR and article 4 of the EU Charter of Fundamental Rights (the Charter), the Belgian authorities were obliged to grant them international protection (para 22). The Belgian State did not consider itself to be under any obligation to admit third-country nationals into its territory, neither under Article 3 ECHR, nor under Article 33 of the Geneva Convention.

In this context, the Council for asylum and immigration proceedings referred questions regarding the interpretation of Article 25(1)(a) of the Visa Code, in the light of the ECHR and Article 33 of the Geneva Convention, to the ECJ for a preliminary ruling (paras 23-28).

Decision and reasoning

The request for a preliminary ruling was granted on 15 December 2016, and the case was subsequently assigned to the Grand Chamber (para 34). In its judgment, the Grand Chamber recalled that the objective of the Visa Code is to regulate short term visits or transits through member states (para 41). The applicants’ intention to apply for asylum in Belgium, with the purpose of obtaining a residence permit that would last for more than 90 days, did thereby not correspond with the definition of “visa” as enshrined in the Visa Code (para 42).

The Court also found that, even though Article 25 of the Code allows for the issuing of visas on humanitarian grounds, the nature of the Syrian family’s application, fell outside the scope of the code. This reasoning was based on the fact that the purpose of the application was not to attain a short term visa (para 47), and more importantly that there are no measures adopted under EU law that regulate the issuing of long term visas or of permanent residence permits. The issue therefore falls exclusively under the scope of national law (paras 41-44).

In the light of this, the Court held that since the issue in the main proceedings of the case at hand was not governed by EU law, Articles 4 and 18 of the Charter could not apply to the situation either (para 45). It was also stressed that allowing for visa applications through diplomatic posts, with the intention to seek asylum in a member state, would indirectly allow third country nationals to seek asylum through the representations of member states within the territory of another state (para 49). Imposing such an obligation on member states would undermine the entire purpose of the Dublin III Regulation (para 49).

Comments

This judgment has been subject to criticism for multiple reasons. There is no mentioning of Article 3 ECHR in the ECJ judgment. Presumably, the Court did not proceed to interpret the Article in question since it had already found that the main issue of the situation was governed by national law. This point was e.g. raised by Helena De Vylder, lawyer at the Flemish Integration Agency. She emphasised that since the ruling is silent in regard of Article 3 ECHR, the interpretation of the provision was left open, which means that the issue must be decided by the national authorities of the case.

As De Vylder also points out, the Court missed an opportunity to clarify the definition and the scope of member states’ obligations to issue ‘humanitarian visas’. In addition, the outcome of the case reaffirms the paradoxical situation in which those seeking asylum must enter the territory of a member state in order to lodge asylum applications, while EU members states simultaneously make it more and more difficult to enter the Union. De Vylder refers to this as a Catch 22-situation. Moreover, the uncertainty created by not providing guidance as to the interpretation of ‘humanitarian visas’ might lead to disparities in the application of the Visa Code.

It is important to note that the ECJ ruled against the opinion of the Advocate General in this case. Advocate General Mengozzi firmly recommended the issuing of visas on humanitarian grounds to the Syrian family since they had no other options open to them. This opinion has also been supported by inter alia a Senior Policy Officer at the NGO the European Council on Refugees and Exiles, Caoimhe Sheridan and Coordinator Amanda Taylor. In an article for the European Database of Asylum Law, Sheridan and Taylor argue that the ECJ took an easy way out in ruling that the issue of the case fell outside the scope of the Visa Code, and by extension EU law in general.

In the article, the authors argue that the issue did indeed fall within the scope of the EU’s competence. To support their arguments the authors make references to other cases (see e.g. Åkerberg Fransson, Siragusa, and IBV v Région wallonne) which the Court could have relied on in order to reach such a conclusion. Similarly to De Vylder, Sheridan and Taylor point out that this would have contributed to a much-needed clarification of EU law in this regard. In the light of this, it seems as if the ECJ could have reached a different conclusion by relying on its previous case law. However, because of the technical and succinct nature of the judgment, it is difficult to distinguish why the Court did not do so. Having said that, it would perhaps not have been appropriate for the Court to be more elaborate on the subject matter of the case, since it found that the main issue fell outside the scope of EU law. Furthermore, future cases may allow the Court to clarify its position.

Sahel Noroozi, Nathalie Holvik and Lara Bianchet

Posted in Case-law | Tagged , , , , , , , | 3 Comments

Andreas Auer on a critical view of the EU’s dramatic referendum (in)experience

Andreas Auer, a professor of constitutional law in Switzerland, presents a reflection on anti-European referendums in the Editorial ‘The people have spoken: abide? A critical view of the EU’s dramatic referendum (in)experience’ published in the European Constitutional Law Review (Volume 12, Issue 3, December 2016, pp. 397-408). Auer analyses different types of constitutional settings of referendums by making a comparison between the United Kingdom (UK) and Switzerland and also national referendums on EU related issues in general.

Referendum cases in Switzerland and the UK

Auer’s article starts with an insight of three major cases worthy exploring in order to discuss   different types of referendums. In the first case, Switzerland had a referendum on the accession to European Economic Area (EEA), where a majority of the political parties, except one, strongly advocated a ‘yes’ vote. However, people decided differently and turned the offer down by voting ‘no’ by a slight majority. As a consequence, Switzerland is not a member of the EEA, albeit it had a series of bilateral agreements with the EEC, which is right now the European Union (EU), and possesses basic elements of free movements and other economic coordinates (p. 397). The second case also concerns Switzerland. In 2011, the Schweizerische Volkspartei launched an initiative against ‘mass immigration’, requiring an amendment to the Federal Constitution introducing quotas and ceilings for foreign workers and priority for Swiss citizens. The majority voted against ‘mass immigration’, but in 2014 the Swiss Federal Tribunal ruled that it could not apply any statute that is not consistent with the bilateral agreement on the Free Movement of Persons, if the agreement was not renegotiated or renounced. The third case is about the British referendum, which was held on 23 June 2016. The question appearing on ballot papers was ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’. A majority of 51.9% voted in favour of the Leave option (p. 398).

The author then continues to compare the constitutional setting and referendums in Switzerland and the UK. The first Swiss case involves mandatory referendum, which requires a popular vote with double majority requirement (people and cantons). It is triggered by the law, i.e. there is no requirement of approval by government or parliament and no gathering of signatures. The second Swiss case concerns the concept of ‘popular initiative’, where the people propose amendments to the Federal Constitution by collecting a certain amount of signatures and Parliament does not have any power to block the proposal (p. 399). As the author emphasizes, the constitutional setting of the Swiss Constitution can be referred to as a ‘bottom-up’ system. Contrary to the Swiss referendums, the UK’s referendums are triggered by the legislature or office holders and are only ‘advisory’. Due to the political pressure the initiators of the referendum feel abided to enforce the decision even if it is not in line with the government’s expectations. The author argues that Swiss referendums in essence are more democratic, since the power to propose or amend constitutions is not held by the legislatures or office holders, which tend to use their power of triggering referendums to compensate their fading legitimacy by carefully choosing specific issues and moments where the people could help them to sustain their policy or position. Thus referendums are not tactical weapons for popular applause for a government in need of some additional legitimacy (pp. 400-401).

The people as a State organ and direct democracy

The author describes his aim was to ‘demystify’ the referendum experience and the people as state organ. He points out that the people cannot debate an issue, they can only say yes or no. The people have no opportunity to motivate or defend their answer. The decision stands, although ‘the people’ cannot be held responsible for that decision unlike other state organs. At the same time, direct democracy strengthens the legitimacy of the decision, which makes a result from a referendum powerful and effective. However, direct democracy has its price and difficulties. It requires time, money and that governing bodies accept that people may make binding decisions even though it may disapprove the outcome. Consequently, the author argues that direct democracy is harder for the governing bodies than for the citizens due to the fact that the people is without accountability and the former are still accountable for their acts and omissions. Nonetheless, the people must still abide by rules prescribed by the constitution and higher law. Accordingly, the power of the people is limited, e.g. by fundamental rights and liberties (pp. 401-403).

The use of referendums on EU matters

To illustrate the referendums on EU related issues, the author provides basic statistics on the matter. During the last four decades the process of European integration has been the primary factor in promoting referendums. There have been over 60 referendums related to EU issues in 23 member states and four other states. Those referendums have been both national and European because the referendums were organised under state law and they were connected to the European integration process. Different types of national EU-related referendums are, for example, the decision on joining or leaving the EU, specific EU-related policies, the euro and EU enlargement steps (pp. 403-405).

When a member state has a referendum on an EU-matter and the result is negative, this is something that all member states must take into consideration. The author gives the example on how voters can abrupt a treaty ratification process. Furthermore, Auer claims that people, through referendums, exercise a power that goes beyond restriction within which their primary unaccountability can be compensated and justified. This can be incompatible with the democratic principle enshrined in Article 2 of  the Treaty of European Union. He means that governments can avoid political duty by transferring the decision making to a referendum. The direct democracy dilemma would stem from three components of the constitutional order of the EU: the intergovernmental conference and ratification as a double unanimity lock, the member states’ sovereignty in the ratification process and the absence of a European referendum (pp. 405-406).

Challenging people’s decisions and the EU’s suicidal referendum policy

Decisions of the people are powerful and must be enforced, although they can be challenged. This is rare due to the strong legitimacy of the people’s vote. A lesson learned from the Swiss referendum in 2011, is that the people can ask to reverse the people’s decision with a new referendum, while the Parliament and the government are bound to implement it. Furthermore, the author discusses Brexit and argues that if the negotiations with the EU do not result in a way the Parliament hopes for, the pressure to have a second referendum might grow. The lesson from the UK seems to go only one step in the Swiss direction in which only the people can undo what the people have done, but can do so only if Parliament allows it (pp. 406-407).

The EU’s biggest mistake, according to the author, is the exclusion of referendums in the EU legal order while still accepting them in the member states. Furthermore, 23 June 2016 is the price that the EU must pay for excluding citizens from the integration process and giving the member states a veto power. However, the EU hopes to overcome the shock of Brexit and to do so an improvement of the fundamental treaties is needed – which, according to Auer, will be difficult or even impossible to reach. Within the existing constitutional framework there seems to be no solution to the EU’s direct democracy dilemma (pp. 407-408).

Comments

In the cases presented by Auer, we can see a crucial matter – people have voted and governments have to abide by that decision. The key issue in general is whether the people as holders of direct democracy can make the best decisions for their countries or even the entire EU. Aren’t they influenced by ‘populism’, phobias or lack of understanding of more complex things like economy or finance, that in some cases turn out not to be the best companion when deciding on hot and important issues?

As the author illustrates, the result of a referendum apparently means that the matter is settled but that is not always the situation. It has been shown by the Swiss referendum in 2011, when the Federal Tribunal concluded that it could not apply any statute that is not consistent with the bilateral agreement on Free Movement of Persons if that agreement was not renegotiated or renounced. This example confirms that even a referendum decision may not apply when it is not consistent with higher law, in this case a bilateral agreement, therefore the power of the people can be limited by the state’s own constitutional order. The people cannot exceed the already mentioned limitations and therefore disproportionately restrict for example fundamental rights and liberties in the name of the public interest and will of the people.                                  

Andreas Auer criticizes the way in which the government grants the people a direct decision-making power that they cannot use. However, he also criticizes the rigidity of the referendum, the people can only accept or refuse, it is not possible for them to express a direct opinion, which is not really worthy of a democracy. Indeed, it is not a matter of giving the people a voice but rather of submitting a clear question to their approval. Nevertheless, his reflection extends further, to the very impact of this referendum because he considers that, the Swiss referendum in 2011 is not really useful, whatever the response of the people to the question asked, nothing will change. The author has spoken on many occasions, saying that he has ‘spent all his life defending direct democracy’ and, ‘only the people can come back on one of its decisions, it is the very essence of its sovereignty’. Concerning the Swiss referendum of 9 February 2011, he had refused to support it against the law because the referendum cannot solve the problems regarding the provision on control of immigration in the Constitution that will remain in effect regardless of the outcome of the vote.

The author is very critical to referendums in general and especially to those on EU matters. In addition, he did not touch upon the EU citizens initiative in Article 11 of the Treaty, which is a tool that allows EU citizens to participate in shaping EU policy. Furthermore, the article does not present the possibility for the EU to reject referendums on EU matters and how it would affect its relation to sovereignty of member states’ legal orders and constitutions. It would also be interesting with a discussion about the rejection of referendums by the EU in regard to the author’s view that the EU has excluded its citizens from the integration process and gave member states a veto power. Another view of the problem is also that people of different member states have different powers in EU matters, since some are able to question it by referendums as a mean of direct democracy, while others do not.

Nonetheless, the problem remains with national referendums that involve EU issues that affect all member states and their citizens. As the author has demonstrated, the EU has tolerated that national referendums can stop for example a treaty amendment process and EU enlargement steps. In a time where there is a rise of anti-establishment and populist voices in the political debate, there is no question that it would harm the EU integration process but rather to what extent. Therefore the author’s criticism concerning national referendums on EU issues can be justified.

 Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck, and Sherimane Abdoun

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Brexit and the UK’s triggering of Article 50 TEU – What happens next?

In June 2016, the United Kingdom (UK) decided to leave the European Union (EU) through a referendum initiated by former Prime Minister David Cameron. After the unexpected result of the referendum, he decided to resign and Theresa May became the new British Prime Minister.

This post follows up a previous one published in this blog before the Brexit referendum, and presents the main issues following the decision of the UK to leave the EU. The post is mainly based on the Statement by the European Council (Art. 50) on the UK, released on 29 March 2017. This statement follows the letter sent by Theresa May the same day, in which she notifies the intention of the UK to leave the EU. This notification starts the withdrawal process under article 50 TEU, which is characterised by much uncertainty.

On the 18 April 2017, the Prime Minister Theresa May announced her decision to call for general elections on 8 June 2017 (The Guardian, 18 April 2017).

Article 50 TEU

Article 50 of the Treaty on European Union regulates the withdrawal of a member state from the EU. Paragraph 1 of Article 50 TEU states that withdrawal from the EU shall be made in accordance with the member state’s constitutional requirements. In January 2017 in the Miller case, the UK Supreme Court ruled that parliamentary approval was needed in order for the Government to invoke Article 50. Such approval was attained after the House of Lords voted on a bill that authorises the Prime Minister to trigger Article 50. The bill was passed into law on 16 March 2017, and as a consequence, the Council of the EU received a letter of notification of withdrawal from the UK Prime Minister Theresa May.  In the letter Article 50 TEU is invoked, and with regard to the UK’s objectives for future cooperation and partnership with the EU, reference is made to a UK Government White Paper, published on 2 February 2017.

What will be the effects on the EU?

Economic issues

The Brexit concerns the departure of one of the largest EU member states, which is also one of the biggest economies in the world (see Oliver Patel and Christine Reh, Brexit: The Consequences for the EU’s Political System). The future of the euro represents an important issue. According to Karl Whelan, two points of view exist when discussing this matter. Some think that the departure of the UK would enable an EU with a deeper integration, and therefore, a stronger Eurozone. Others argue that Brexit would be a step towards the end of the euro as a common currency, and perhaps the end of the EU in its actual form. Indeed, the result of the UK referendum represents a strong signal sent by the European citizens that the EU is perhaps less popular than we imagined.

The departure of the UK will also affect the EU’s budget, since the UK is one of the biggest contributors. Furthermore, foreign direct investments will decrease for the EU member states, because the UK is the main recipient of these within the EU (UK Reuters, 24 June 2016).

Political issues

The balance of powers between the EU member states will be affected by the departure of the UK. After Brexit, the weight of the liberal European countries will decrease due to the loss of one of their main partners, the UK. At the same time, EU member states with a protectionist policy, such as Italy, France, as well as Spain, will rise. None of these two opponent blocs will have a blocking minority in the Council anymore (see Oliver Patel and Christine Reh, Brexit: The Consequences for the EU’s Political System p. 4). Moreover, states supported by the UK will lose some weight, while the role of Germany as a leader within the EU might increase (see Oliver Patel and Alan Renwick, Brexit: The Consequences for Other EU Member States). Furthermore, since a large majority of the UK’s MEPs belong to the right wing and to the Eurosceptic wing of the European Parliament, it seems that the leftist parties might gain some weight. This fact should result in more social democratic politics within the EU (see Patel and Reh).

One of the main risks for the EU is the domino effect that the UK’s exit might cause. (see Patel and Renwick p. 2). France and Germany might be tempted to limit this effect through the adoption of a strict withdrawal deal with the UK, which should discourage other Eurosceptic member states within the EU to follow the same path. Indeed, they may want to seize the opportunity of Brexit to ask for a specific opt-out status for their country or just to leave (see Patel and Reh p. 2).

What will be the effects on the UK?

According to the White Paper, a bill, namely the ‘Great Repeal Bill’ will be drafted to provide legal certainty when the UK exits the EU. It will end the supremacy of EU law and the jurisdiction of the Court of Justice of the European Union in the UK. It will also convert EU law into national legislation. This means that the UK’s earlier obligations during its EU membership will continue to apply, but the legislation can be subject to change on a national level.

According to the UK based independent think thank Institute For Government, it is likely that the Parliament will have to pass an additional 10 to 15 new bills, and a massive amount of secondary legislation before the process of exiting is completed. Since the negotiation process under Article 50 only lasts for two years, there is a risk that such legislation will be rushed, which by extension can affect its quality, and the democratic process.

Economists predicted that leaving the EU would have detrimental effects on the UK’s economy. However, the post-referendum period has so far shown that they were wrong in their forecasts. The UK economy has grown and the Gross Domestic Product has increased by 0.7 % since the last mensuration (BBC News, 28 March 2017).

The UK’s economy is doing well, but as business reporter Tim Bowler points out, the UK has not yet left the EU, and the real change may occur after the exit. However, other sources claim that the UK used to be a great trading nation, and that Brexit could be a perfect opportunity to strengthen the ties with Commonwealth member states and other powerful trade nations such as China and Saudi Arabia (Politics in Britain, 29 March 2017).

Migration was one of the most hotly debated questions prior to the referendum in June 2016. According to the White Paper, immigration is going to be restricted and the Free Movement Directive will be curbed, and will not apply when the UK exits the EU. In June 2016, the net migration to the UK was 335,000. Prime Minister May has repeatedly assured that she would reduce the net migration to below 100,000 a year. On the basis of this, it seems as if migration will be heavily restricted, which will inevitably have an effect on both individuals and the EU (Politico, 14 January 2017).

What do other nations think?

Germany’s official standpoint has been that the UK should stay in the EU. In January 2017, Chancellor Angela Merkel commented on Theresa May’s landmark ”Brexit speech”, stating that she appreciated it for giving more clarity to the circumstances of Brexit. Moreover, Merkel stressed the importance of maintaining a unified Europe and ensured that this would be achieved through intensive dialogue (The Independent, 19 January 2017).

The attitude of the United States (US) has changed quite drastically since 2016, pursuant to this year’s shift of power in the US. Before the referendum, President Obama urged the UK to stay in the EU. This was clearly expressed in an article published in The Telegraph on 23 April 2016, in which the former President argued that staying in the EU would be the most beneficial option not only for the EU but also for UK citizens and for the UK’s relations with the US. Moreover, he stated that the UK would be at the “back of the queue” of trade deals with the US should the country choose to leave the EU (The Guardian, 22 April 2016).

President Trump however has commended the UK for opting out of the EU, since he considers the EU to be dominated by Germany. The President further stated that the US is ready to form a trade deal with the UK as soon as possible. Moreover, President Trump expressed that if the UK “hadn’t been forced to take in all of the refugees” there would not have been a Brexit, and that he believed that other countries would follow in the UK’s footsteps (The Guardian, 16 January 2017). Both the US and the UK have expressed their will to maintain and strengthen the cooperation between the two states, and Theresa May was the first foreign leader to visit President Trump in the US after his inauguration. The EU does not welcome Trump’s positive approach to Brexit. EU Commission President Jean-Claude Juncker has stated that if the US President were to continue to encourage other states to leave the EU, Juncker would promote the independence of states of the US (The Independent, 31 March 2017).

French President François Hollande has expressed his disapproval regarding the UK’s decision to leave the EU. France has on several occasions reiterated its belief that the UK should not be able to keep the advantages of an EU membership after leaving. President Hollande has stated that the UK is making a poor decision in strengthening their relations to the US since the US seems to be alienating itself from the world and adopting a more protectionist foreign policy.  “The UK has made a bad choice at a bad moment”, the President stated (The Guardian, 6 March 2017).

Nathalie Holvik, Sahel Noroozi, and Lara Bianchet

Posted in News and events | Tagged , , , | 2 Comments