Opinion of AG Sharpston in Karim v. Migrationsverket (C-155/15)

This post discusses the opinion of the Advocate General (AG) Sharpston delivered on 17 March 2016 on the case Karim v. Migrationsverket. The case was brought in front of the Administrative Court of Appeal of Stockholm (Kammarrätten). The general background of this case revolves around the question of the responsible authorities when an individual from a non EU country makes several requests for asylum in two or more Member States of the Union. The case is yet to be decided.

General background

Mr. Karim is a national from Syria who left his country and migrated towards Europe. He first made a request for asylum in front of the Slovenian competent authorities in May 2013 before leaving the territory of the European Union for a period longer than three months. Finally, he came back and made a second application for asylum in front of the Swedish Migrationsverket in March 2014 (para. 12).

Coordinating their efforts, the Swedish and the Slovenian migration boards agreed that Slovenia would take responsibility for Mr. Karim’s request. Based on Article 19 (2) of the Dublin III Regulation, this agreement led to both a rejection of the Swedish asylum application and a transfer decision (para. 12).

While challenging those decisions, Mr. Karim based his arguments on the Dublin III Regulation and on articles 19 (2) and 27 (on the right to an effective remedy concerning an appeal or a review against a transfer decision) in particular. According to his reasoning, his right to a remedy and therefore to an appeal against a transfer decision should not be limited to the examination of “systemic deficiency” (and humanitarian reasons), but should also include the grounds stated in the Chapter III criteria of the Dublin III Regulation. Moreover, according to him, in accordance with article 19 (2), any burden of responsibility on Slovenia ceased due to his absence from the EU territory for more than three months, meaning that it was actually Sweden that should review his asylum application (para. 13).

As a consequence of the fundamentally different interpretations that could be made of the relevant legal framework, the Swedish Court asked the ECJ for a preliminary ruling centered on two questions:

First, should Article 27 of the Dublin III Regulation receive an extensive interpretation and allow for a remedy based on the misapplication of the criteria contained in Chapter III of the Dublin III Regulation that determines the responsible Member State (para. 15 (1))?

Second, even if the question is not adequately written, does the application of article 19 (2) lead to a completely new procedure of determination of the responsible member state (thus meaning the exclusion of Slovenia in the present case) (para. 15 (2))?

Opinion of the Advocate General

Regarding the first question posed by the referring court, AG Sharpston identified three possibilities as to the proper interpretation of the right to an effective remedy in Article 27 (1). These ‘three options’’ may be invoked by an applicant to appeal or review a transfer decision made by a determining Member State in order to prevent the transfer to the designated responsible Member State, in this case Slovenia. In turn, the determining State shall examine the possibility of designating another Member State as responsible for the application for international protection. In essence, the question regards the interpretation and scope of application of Article 27 (1) read together with recital 19 of the Dublin III regulation.

The ‘first option’ is restricted solely to the grounds identified by the ECJ in case Abdullahi where a transfer decision can only be challenged when it is in breach of Article 3 (2) of the Dublin III Regulation. It provides for the right to an effective remedy in cases where systemic deficiencies in the asylum procedure can be identified. Another opinion relevant in this case is opinion Ghezelbash delivered by AG Sharpston on the same date where this option is explained more in detail (see para. 60 of Ghezelbash). The ‘second option’ is limited to cases in which justification grounds that follow from the ruling of the Abdullahi case can be invoked as well as expressly conferred rights on individual applicants contained in the Dublin III Regulation which reflect fundamental rights protected by the Charter (para. 22).

Finally, Sharpston concludes this first question by introducing the ‘third option’, stating that Article 27 (1) should be interpreted as including the entitlement of an applicant to appeal or have a contested transfer decision reviewed when national authorities may have misapplied the criteria contained in Chapter III of the Dublin III Regulation.. (This option proposed by the AG would give fully effective protection to Mr. Karim (paras. 34 and 35). In this sense, it was the information of the Swedish authorities that was of significant value since it questioned whether the said authorities had applied the Chapter III criteria correctly when making the transfer decision as such. It emerges from the case that Swedish authorities were aware of his absence from EU territory for more than three months. Nonetheless, they did not apply the chapter III criteria correctly by requesting a transfer to Slovenia (para. 25).

As to the second question, the AG states that the facts of the case are clear and that the application made by Mr. Karim should count as a second application as long as it may be established that he left the EU territory for more than three months (para. 45). Thus, any subsequent application for asylum made to the competent authorities of a Member State constitutes, under Article 19 (2), a new application giving rise to a separate and independent procedure for determining the responsible Member State (para. 46).

Comment

What is interesting in this case is if the Court will be of the same opinion as the AG on this question, and what consequences this may have in the future. According to Article 252 TFEU the opinion of the AG is not binding, meaning that the Court is free to determine if it wants to follow the opinion.

The Dublin system is a legal framework designed to address the problem of refugees in Europe by distributing responsibility of examining asylum applications to Member States. Article 19 (2) of the Dublin regulation III concerning leaving the territory of the Member States for at least three months, may work against the original idea behind the Dublin III Regulation which includes, inter alia, preventing “forum shopping” (para. 17). The AG mentions in her opinion that Article 19 (2) of the Dublin III Regulation should be interpreted as stating that if an applicant for asylum left the territory of the Member States for at least three months, any application for asylum made to the competent authorities of a Member State constitutes a new application and new procedure (para. 46).

However, based on this opinion of the AG one could wonder if it is a factor contributing to the asylum “forum shopping”. One thus has to wonder whether this opinion actually helps the purpose of the Regulation or if it is rather counterproductive. The aim behind the Dublin III Regulation regulation was to prevent applicants from submitting applications in more than one Member State, and to ensure an effective access to the asylum procedure. However, this can be disputed based on the AG’s opinion in this case on how the article in question should be interpreted. This may contribute to increase “forum shopping” rather than decreasing it.

To conclude, it will be of particular interest to see whether the ECJ will follow the AG’s assessment, bearing in mind that the Court commonly applies a teleological interpretation of EU law (See Schütze, European Constitutional Law, p. 207). A teleological interpretation of the Dublin III Regulation in this case seems to point in an opposite direction from the conclusion of the AG.

Negin Hamedanian Torghi, Pierre Lempereur, Alexandra Mihaltan

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The Common Asylum System – a European Utopia?

Introduction

Europe is facing the largest influx of asylum seekers since the creation of the European Union (EU). Thousands of migrants lose their lives when crossing the Mediterranean Sea on their way to Europe (see earlier posts). The large amount of asylum seekers encumbers both the national and European asylum systems. Disproportionate responsibility is placed on the Member States that form the EU’s external borders due to a high influx of migration, as well as on those States voluntarily taking more responsibility in dealing with the crisis. The discrepancy in the treatment of refugees between the Member States, inter alia by giving asylum seekers incentives to reach specific countries that are more favorable to them, aggravates the irregular secondary movement within the EU.

13 May 2015, the European Commission (the Commission) presented its European Agenda on Migration. Since then, three implementation packages, derived from that agenda, have been adopted. The current refugee crisis has however revealed several weaknesses in the structure as well as in the implementation of existing rules, especially the Dublin Regulations. In particular, they were not designed to provide a fair sharing of responsibility among Member States. The EU’s legal framework requires a change in order to ensure an efficient and foremost humane common asylum policy. A multifaceted system that is based on responsibility and solidarity is essential for a sustainable EU migration policy.

The Commission’s proposal

6 April 2016, the Commission communicated its proposal to the European Parliament and the Council concerning various improvements of the current Common European Asylum System (CEAS) and better safe and legal pathways to Europe. One proposal concerns the Dublin III Regulation, which is to be reformed. Or, alternatively,  a new system could be introduced in order to ensure a fair sharing of responsibility. Reforming the current system would result in an inclusion of a fairness mechanism, providing for distribution of people under certain circumstances, such as a mass influx of people. The suggested new system is based on a

distribution key. Most asylum seekers would, after the registration process in the country of first point of entry, be sent to another Member State in accordance with the distribution key. This key would be based on the Member States’ capacity, GDP and relative size. Family ties could be an exception to this distribution though. Such solutions could be compared with the resettlement scheme from fall 2015. Member States made new commitments and reaffirmed those to receive people in need. Unfortunately, the commitments turned out to be empty words since only a fraction of the number agreed on had been received in March 2016. The efficiency of the suggested solutions is questionable: why does the Commission imagine that similar attempts would work better now than before? Especially knowing that Member States have become even less eager to cooperate.

Beyond these two possibilities, the Commission plans to propose a long-term solution by introducing a centralized EU agency with national branches to deal with the asylum processes and achieve harmonization. However, this harmonization is not a possible solution within a short time. In order to limit irregular and secondary movement as well as guarantee legal certainty, a harmonized asylum process and standards among Member States is suggested. Another incentive for asylum seekers to stay in their designated States could be certain conditional rights. These rights would then only apply if the person stays in that State, which would also be obliged to take back asylum seekers that have moved to another Member State. What conditional rights the Commission refers to exactly is however, unclear. It is stated they do not cover fundamental rights. Presumably, these will be different social entitlements, inter alia financial support.

It might be understandable that in an EU asylum system, with a distribution of the asylum seekers, secondary movement should be avoided. A harmonization of standards and procedures would therefore be a fundamental step in eliminating, or at least reducing, irregular secondary movement. Otherwise the original distribution would have been an unnecessary step and use of resources if asylum seekers would not stay in the designated State.

Further measures proposed by the Commission were to expand the mandate of the European Asylum Support Office (EASO) in order to facilitate and ensure the compliance with the CEAS. The aim is strengthening its already operational functions within the system as well as expanding its mandate to cover a policy-implementing role. This means, monitoring of how the Member States comply with the existing standards, reception conditions. In cases where Member States’ actions and measures are considered insufficient, the EASO should be able to intervene. If sufficient steps are still not taken, the Commission could take actions against the Member States. Further, the mandate of the EASO would also cover the distribution mechanism in relation to the new Dublin Regulation.

Legal and safe migration routes (The EU-Turkey Agreement)

The EU-Turkey Agreement (the Agreement) was adopted in reaction to the illegal migration to the EU through Turkish borders and came into force on 20 March 2016. The aims are, besides creating safe and legal routes, to track the people smugglers´ businesses and dissuade the creation of new routes to enter the EU illegally. The Agreement stipulates that every new irregular Syrian migrant crossing from Turkey to the Greek islands will be returned to Turkey. It also follows a one in – one out rule: for every irregular Syrian migrant returned to Turkey, another Syrian will be resettled to the EU. Turkey possesses the responsibility to take necessary preventive measures in order to stop the creation of new sea or land routes for irregular migration from Turkey to the EU. What preventive measures that should be taken is for the Turkish Government to decide. For this task, the EU has provided its close cooperation and financial support to the Turkish Government : three billion euros were initially allocated and another three billion euros will be mobilised by the end of 2018.

If the Agreement could potentially reduce irregular migration, it is rather open to critique that this task is entrusted to a non-member State, the human rights quality levels of which, do not comply with EU standards. The International Rescue Office has denounced the accord as illogical and unethical:The deal is only going to lead to more disorder, more lack of dignity. Other aid agencies have claimed that the situation has only gone from bad to worse. These restrictions could encourage using different and potentially more dangerous routes, such as the journey from North Africa to Italy.

The plan is, after achieving a substantial reduction of these irregular crossings, to activate a Voluntary Humanitarian Admission Scheme (the Scheme). It is a recommendation formulated by the Commission, encouraging the Member States to participate on a voluntary basis in the Scheme by admitting persons in need of an international protection who have fled from the Syrian conflict. This will only apply to the individuals who have been registered by the Turkish authorities.

The efficiency of the Scheme is questionable, since it requires voluntary participation by Member States. However, the European Commission’s President Jean-Claude Juncker is optimistic regarding such participation as he stated: “Being a great continent comes with great responsibilities. Today we are recommending that our Member States offer temporary protection to vulnerable people fleeing violent conflict in Syria, in line with their individual capacities”. But it may be too early to make any rushed statement, since the Agreement only entered into force last month and the Scheme has not been activated yet.

Final words

The unsuccessful common asylum system of the EU testifies of a failure to find a solution to the migration crisis. The EU’s framework was not ready to face the current migration crisis. Recent attempts of regulating the asylum system have also failed and not because the crisis was unexpected, rather lack of will and cooperation between the Member States. The latest agreement with Turkey shows the unwillingness of effectively dealing with the increasing migration influx since it is a total back turning to the asylum seekers. It seems like the EU has lost its fundamental values, such as solidarity, that were central at its starting point after the Second World War. The CEAS must be based on solidarity and fair sharing of responsibility together with a humane approach in order to reach the European Utopia.

Yasmin Semmane, Julia Steen and Anton Öberg

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Reading suggestion #26: The Commission replies to “Stop Vivisection” European Citizens’ Initiative

On 3 June, the Commission  replied to the “Stop Vivisection” European Citizens’ Initiative, and decided not to abrogate Directive 2010/63/EU on the protection of animals used for scientific purposes as requested by the Initiative (see the Press Release). The decision was taken after a public hearing held on the Initiative hosted by the European Parliament on 11 May. In a Communication published on the same day, the Commission explains in 10 pages the reasons for its decision.

Quote from the Communication:

“The Commission is of the opinion that animal experimentation does not pose an obstacle to developing alternative research tools. The use of animals in research actually provides a mechanistic understanding of the biology of animals and humans, which enables the development of more ethical, cost-effective, predictive and faster alternative methods. The Commission recognises the limitations of both animal models and alternatives, and constantly follows up and supports new developments for improved predictive methods. Today, the development processes for new medicines, basic research and predictive safety testing of substances no longer rely exclusively on animal models. In all areas, a weight of evidence approach is followed that takes into account existing knowledge, resulting from alternatives, animal tests and human exposures together. Most relevant pieces of EU legislation in the field of testing make the use of reliable alternatives mandatory once they have been validated.” (p. 7)

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‘Towards a New Schuman Declaration’ – Confronting the future of Europe

On 9 May 1950, the French Minister of Foreign Affairs Robert Schuman presented what would become the foundation of the European Coal and Steel Community – the Schuman Declaration. The Declaration laid down some important guidelines, but most importantly, it was a way of making sure that there would never be a third World War. The Declaration included words about uniting Europe through the coal and steel production, and through this economic co-operation solidarity between the Member States would have developed. The common market without customs duties would unify Europe and create higher living standards for the people living in the Community. 65 years after the Schuman Declaration, on almost the exact same date, a new declaration was published on 6 May 2015. In ‘Towards a New Schuman Declaration’, the authors explain that the EU needs to do exactly what the title states: to move towards a new Schuman Declaration with new values and new goals. This declaration was presented by Giuliano Amato, Elisabeth Guigou and Vaira Vīķe-Freiberga at the State of the Union conference, which is annually organised by the European University Institute. It was presented at the conference’s fifth edition (held on 6-9 May 2015 in Florence), which focused on the future of the European Union.

The unfortunate development of the EU

The declaration was presented by Giuliano Amato, former Judge of the Constitutional Court of Italy, at present emeritus Professor at the EUI Department of Law and former Vice President of the European Convention on the Future of Europe that drafted the European Constitution; Elisabeth Guigou, a former member of the European Parliament, former French Minister of European Affairs, of Justice and of Employment and Solidarity. She is also a founding chairwoman of Europartenaires, a group linking business interests with the EU; and Vaira Vīķe-Freiberga, who is member of the European Council on Foreign Relations and the Former President of the Republic of Latvia. Together, all the authors share an extensive and qualified background not just in the legal sphere, but mainly in the political field. 65 years ago the Europeans were in need of solidarity for a unified Europe. Today, the authors are all of the view that Europeans are once again in need of concrete achievements, not for reaching solidarity but for maintaining it.

The authors explain that the main purpose of unifying Europe was indeed that there should be no more wars in Europe, and that this idea has been far more successful than anyone ever expected. The declaration also explains that the purpose of the Union was not purely economic with the free movements, but there was also a focus on developing the human rights and the principles of law and democracy. But the authors claim that there has been a change in this progress. Europe has turned anxious, anxious of whether the economic state of certain Member States are going to be the end of the EU; anxious about how the Union is going to be able to safeguard both prosperity for all individuals in the EU and still be able to uphold human dignity and social justice for all those individuals; anxious about the issues of energy supply. And finally, European citizens are now anxious about the internal security and external defense of the Union, as conflict is getting closer and closer to the borders of the Member States.

The authors further conclude that many believe that the increasing internal and external immigration has caused a confused cultural and political situation within the Member States. There are also signs that many are starting to lose their faith in the EU institutions, doubting whether they are actually able to fulfill the wishes that the citizens of Europe have. All these issues can according to the authors be solved through a stronger Union leadership which is able to give the answers that the Union citizens so desperately seek.

The ability to change the Union for the better

The authors mention several areas that the Union needs to develop in order to create a more successful EU. First, the EU should set a standard for social and sanitary protection and find a way to intervene when that standard is not met by the Member States. This in order to protect the welfare and jobs that have been injured by the financial crisis. Further, the EU should shift the focus from putting a great deal of its resources into the agricultural sector to creating a ‘Common Urban Policy’ for the people living in the urban areas as they constitute the largest part of the EU population. This shift would give mayors a bigger role, and it would help in the development of employment and climate control. Creating an Energy Union would be the next step to ensure sufficient energy supply for the entire Union. Next, the authors find that a European Defense Union is needed in order to protect the Member States from external threats. The free movement of persons should still be a big part of European citizenship. However, the European citizens also need to gain the sense that they are able to affect what is going on in the EU. The authors therefore suggest a change in the process of EU politics, to give the citizens a bigger influence. Finally, regulations must be made regarding immigration into the Union. The responsibility of dealing with immigrants cannot only lie on the gateway states. The article finds that all of these steps need to be taken in order to revive solidarity in Europe, and to make the Union come alive again.

Analysis

The authors provided concrete solutions in order to solve the challenges that the EU faces. These were, inter alia, that the EU puts a lot of resources into the agricultural sector and that this focus should shift to the urban sector. However, this might cause a heavier burden on the few farmers that are able to remain within the business and it will in turn cause higher pricing on food-stuffs. It is indeed an issue when most people live in urban areas but are not the focus of EU resources, but the issue still stands that these people are very much dependent on the agricultural sector, and the latter should not be completely forgotten. The discussion about resources could also be connected to the migration issue. As an earlier post of this blog showed, the resources available at the moment are not sufficient to solve all the issues facing the Union. If we put more resources in the urban sector, the agricultural sector suffers. If the Union would have contributed to the migration problem as Italy did, another sector would probably have suffered. It is difficult to find a solution to this problem, since it is a question of values. What do we value the most?

Furthermore, the authors bring up the idea that there needs to be a change in the political process in order to give the European citizens more influence on the decisions that are taken within the Union. However, the authors do not mention exactly how this process should be changed. This is not a small problem, as it is very difficult to change the political process, and since many European citizens do not reflect much over affecting the EU with their vote, there needs to be quite a radical transformation in order to change the view that the citizens have.

When it comes to immigration, it is essential for the demographics of Europe to have a well regulated immigration policy. Free movement makes it necessary for the EU to have an effective regulation concerning immigration. The authors consider that for such a policy to become real, it is essential that Europe should be a home for newcomers but they must in turn make Europe as their home and accept the values of Europe. [See p. 4 of Towards a ‘New Schuman Declaration’]. An important question that arise with this statement is how immigrants can make Europe and its values as their new home, when not even most of the European citizens identify themselves as a European, but rather as a citizen of their Member State?

Conclusion

The proposed suggestions by the authors seem to be good in theory, perhaps there is indeed a need for such fundamental changes within the EU. However, the authors propose a lot of ideas that would require extensive constitutional changes within the EU institutional framework, without providing any further explanations nor details of how these changes are to be achieved. In the 1950 Schuman Declaration, the ideas were rather abstract and one started with a clean sleight. Abstract solutions without any clear explanations of how those solutions are to be carried out might have worked back in 1950, but will probably not be sufficient today with a well-established Union system and its complex institutions. Based on this, is it possible to make a new Schuman Declaration according to the circumstances we have today? However, one must keep in mind that the authors did not aim to solve all issues within Europe, but to steer the minds of Europe towards the idea that there is indeed a need for a new Declaration. The Declaration is probably aimed to provide us, the citizens of Europe, fundamental challenges but also solutions of how these can be tackled in order to restore solidarity within Europe. A way to restore faith in Europe and to keep the vision of “the European dream” alive.

by Sara Carlbom, Emilia Pettersson, Marcus Johansson

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The new European Agenda on Migration – Solidarity shall not only be a slogan

Introduction

The 13th of May the European Commission presented its new European Agenda on Migration as expected since April (see an earlier post on this Blog). The new agenda has been discussed by the MEP’s at the European Parliament Plenary Debate on the 20th of May 2015. During the debate, a number of measures, as the resettlement scheme and an emergency mechanism for relocating migrants were presented by the Commission Vice President, Frans Timmermans and the European Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos. Avramopoulos in his closing statement expressed that “no member states can address the challenges alone”. The European Commission has also released a video of Juncker, President of the European Commission, describing the importance and details of the new European Agenda on Migration.

Background

The new agenda is finally set and it is clear that it will require a great cooperation between all the European Member States to face the issue of migration. One of the big concerns regarding the mass influx of migrants in Italy has been the closure of Mare Nostrum. There have been speculations that the new Operation Triton has increased the number of deaths in the last few months, due to the poor standards of its vessels and to the lack of money and personnel. The latter operation was closed due to the great costs for the Italian Government which has successfully forced the EU to find a Union-wide solution. The tragedies in the Mediterranean were undoubtedly a result of the lack of cooperation between the Member States as well as between Italy and Frontex regarding resources and financing.

The new European Agenda on Migration

The new agenda is the EU’s response to the concerns regarding the migrants deaths at sea and the mass influx. The Commission has presented concrete and immediate actions which hopefully will be taken as soon as the European Parliament and the Council have approved the Commission’s proposal. The new agenda is build on four pillars: 1) reducing the incentives for irregular migration; 2) saving lives and securing the external borders; 3) a strong common asylum policy; 4) a new policy on legal migration.

The first step is to reinforce operation Triton and Poseidon. Triton had been criticized before and is still unclear if the standard of the vessels will be improved, but the Commission has promised € 50 million to finance that refugees are brought to the EU territory safely and legally. Regarding the lack of cooperation between Member States and the failure of securing the safety of migrants at sea and the mass influx, the EU will support the frontline Member States with additional € 60 million emergency funding to enforce solidarity. The emergency mechanism aims to trigger a relocation of refugees when a Member State is under pressure.

Further, the Commission will establish a Common Security and Defence Policy (CSDP) operation in the Mediterranean pursuing the aim to dismantle traffickers’ networks and to fight smuggling of people, in accordance with international law. The agenda is not only an emergency solution, it is expected to lead the EU forward for 5-10 years. The strategy for the migration issue will not be to open or close borders, but rather to mobilize resources and ensure migration in a better and more safe manner.

Is the solution that will prevent thousands of refugees of drowning in the Mediterranean finally here?

Many refugees crossing the Mediterranean arriving to Europe are in need of urgent medical care. As mentioned before, the EU is planning to support the frontline Member States with additional € 60 million in emergency funding. This also includes the ‘support to reception and healthcare system of Member States under particular pressure’, however the commission does not elaborate the healthcare system in detail. The Policy Manager for Health System of The European Public Health Alliance, Sascha Marschang says that ‘The European Migration Agenda misses the mark by omitting health’ and one can assume that refugees urgent health attention is overlooked in the European Agenda on Migration.

The Commission have proposed an EU-wide resettlement scheme to offer 20.000 refugees a place in one of the Member States. The distribution of refugees will depend on the GDP, size of population, unemployment rate and past numbers of asylum seekers and numbers of resettled refugees and efforts made voluntarily by Member States. Some Member States, such as the UK, have shown their unwillingness to receive more refugees and opposed the new resettlement plan, while other Member States have shown their willingness. As mentioned before, the new European Agenda on Migration requires a great cooperation between all Member States, but the unwillingness to receive more refugees by some Member States might disrupt the expected level of cooperation that is required to reach the aim of the new agenda.

The agenda is still only a proposal from the Commission and still needs to be debated and approved by the European Parliament and the Council. The success of this agenda is therefore to be doubted since some Member States already have expressed their unwillingness to participate. British Member of the European Parliament, Timothy Kirkhope, criticised the plans to redistribute asylum seekers in Europe at the European Parliament Plenary Debate: “We have a moral duty to assist one another, but true solidarity is offering assistance because it is the right thing to do, not because we have been compelled”. Further, the mechanism for the relocation and resettlement of migrants comes across a very complex system regarding the calculation of the number of migrants a Member State shall receive. It would be unfortunate if a country as Sweden, would not receive as many as it is willing to, due to the application of a new calculative system.

The Commission, when it released its plans on a Common European Migration Policy, claimed that solidarity shall not only be a slogan. However, considering the measures and actions the Commission is going to take, and considering the delicate political situation in Europe, it seems a slogan only – more than ever before.

by Kristé Zvinklyte, Stephanie Winkler, Mathias Davatz

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Willems, Joined Cases C-446/12 – C-449/12, of 16 April 2015

When is the Charter of Fundamental Rights of the European Union (the Charter) applicable to Member State measures? According to Article 51(1) of the Charter, it will only apply to the Member States when they are implementing EU law. The wording of the provision seems restrictive, but the European Court of Justice (CJEU) has interpreted it extensively in its case-law, especially in its case Åklagaren v. Åkerberg Fransson (C-617/10, commented previously on this blog here). In Willems, Joined Cases C-446/12 – C-449/12, of 16 April 2015, it seems as the CJEU wants to change its stand in the question and take a step back from its previous ruling in Åklagaren v. Åkerberg Fransson.

Background

According to Regulation No 2252/2004 Member States shall collect and store fingerprints and other biometric data in the storage medium of passports and other travel documents. The biometric data shall only be used to verify the authenticity of a document or the identity of the holder, pursuant to Article 4(3) of the Regulation. Three persons applied for passports in the Netherlands and one applied for a Dutch identity card. All applications were rejected due to the refusal of the applicants to leave digital fingerprints (par. 16). The applicants argued, inter alia, that the way the biometric data are stored constitutes a serious breach of their physical integrity and their right to privacy (par. 17-18). They also claimed that using biometric data for other purposes than the original purpose when it was collected is contrary to fundamental rights (par. 20).

The applicants’ claims were rejected at first instance and they appealed to the Council of State (Raad van State), which referred two questions for a preliminary ruling. The first question concerns identity cards and it will not be analysed here. Our focus will be on the second question: If Article 4(3) of Regulation No 2252/2004, read together with Articles 6 and 7 of Directive 95/46 and Articles 7 and 8 of the Charter, have to be interpreted as meaning that it compels Member States to safeguard that biometric data collected and stored pursuant to that Regulation will not be collected, processed and used for purposes other than to issue passports or other travel documents (par. 43).

Judgment

Regarding the collection of biometric data for the purposes laid down in Article 4(3) of the Regulation the Court has already stated in Schwarz (C-291/12) that this is compatible with Articles 7 and 8 of the Charter. The CJEU states that it is clear from the case-law that the fundamental rights set up by the Charter have to be respected when national legislation falls within the scope of EU law, consequently the applicability of EU law leads to the applicability of the Charter, as seen in Åklagaren v. Åkerberg Fransson (par. 49). However, in Willems the Court argues that Regulation No 2252/2004 is not applicable and therefore there is no need to adjudicate if storage and use of biometric data for other purposes is compatible with the Charter (par. 50). Therefore, the Member States do not have to guarantee in their national legislation that biometric data collected and stored in accordance with the Regulation will not be collected, processed or used for other purposes than to issue passports or travel documents since that is not a matter falling within the scope of Regulation No 2252/2004 (par. 53).

Åklagaren v. Åkerberg Fransson

In the case of Åklagaren v. Åkerberg Fransson C-617/10 the CJEU faced a similar problem but came to a very different conclusion. The case concerned the principle of ne bis in idem with regard to tax surcharge and tax evasion crime when sanctioning evasion of VAT tax. The case was decided by the Grand Chamber but was controversial because of how far the Court extended the application of Article 50 of the Charter, the prohibition of dual punishment, to national law.

According to Article 51(1) of the Charter it will only apply to the Member States when they are “implementing” EU law and in Åklagaren v. Åkerberg Fransson the Court stated that it applies when a Member State acts within the scope of EU law and found that the provision in Directive 2006/112/EC, which requires a Member State to sanction evasion of the VAT tax, was sufficient to apply the Charter to criminal procedure regarding VAT tax.

CJEU’s stance on the applicability of Article 51 of the Charter

Åklagaren v. Åkerberg Fransson shows how the CJEU is both able and willing to expand the scope of EU law where it finds this necessary, although some claim that it is necessary to widen the application of the Charter considerably by an extensive interpretation of Article 51. Jakab in his essay on the subject, commented previously on this blog here, is of that opinion. Willems seem to confirm the worries of Jakab that the CJEU may slow down its own progress in widening of the applicability of the Charter.

Professor Steve Peers comments Willems in another blog post and raises strong criticism against the CJEU’s reasoning. He describes it as appalling and denounces it in particular because the Court never considered the applicability of the Data Protection Directive 95/46. Peers claims that the Court should not have limited itself and should have answered whether or not the Data Protection Directive applies and consider the applicability of the Charter in that context. According to Peers the national court have already identified the Data Protection Directive as relevant to the case and it is in line of the Court’s case-law to rephrase the questions posed by the national court in order to give a complete answer. Furthermore, Peers writes about the Court’s unwillingness to apply the Charter in a more general perspective and makes a comparison to the ruling in Schwarz (C-291/12).

In addition the Court refers to the European Convention on Human Rights (ECHR) (par. 51), which seems a bit contradictory after the negative Opinion 2/13 by the Court (commented previously on this blog here). The CJEU appear reluctant to surrender its powers but still makes a reference to national measures and the ECHR. It is interesting that the CJEU finds that ECHR may be applied when the Charter cannot.

Willems appear to be a step back by the CJEU when it comes to an extensive application of the Charter. The CJEU could have kept delivering activist judgments, such as Åklagaren v. Åkerberg Fransson, to keep the EU effective in protecting fundamental rights but instead chose a more careful approach. Is this just an exception or does this mean that the CJEU is putting the progress to a halt? It is hard to predict the consequences for now, as Willems leave many questions unanswered, making it troublesome to foresee when national measures falls within the scope of EU law.

by Thomas Johansson, Lisa Nyström and Julia Sandgren

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Jakab on the Application of the EU Charter by National Courts in Purely Domestic Cases

András Jakab, Director of the Institute for Legal Studies of the Hungarian Academy of Sciences and Schumpeter Fellow at the Max Planck Institute, pre-published on SSRN an essay discussing the application of the EU Charter by national courts, to appear in a volume edited by him and Dimitry Kochenov on “The Enforcement of EU Law and Values” (to be published by Oxford University Press this year). He claims that the EU is a community of values such as democracy, freedom and equality, and if the EU is not going to defend those values harder it will lose its credibility. The question raised is how the EU should do that since there are both political and judicial enforcement methods, but neither one is as efficient as they should be. For Jakab the only reliable enforcement mechanisms are those that are judicially guaranteed.

The Author argues that to widen the application of the EU Charter of Fundamental Rights, a re-interpretation of its Art. 51(1) is the most promising way to conceptualise the values of European constitutionalism in a judicially enforceable manner. Art. 51(1) of the EU Charter states that it is only applicable on Member States when they are implementing Union law.

According to Jakab this is the keystone provision of the Charter. It is limiting its scope regarding the Member States and is applicable “only when they are implementing Union law”. The Author states, that this formulation is too restrictive and therefore contradicts the philosophy the European legal system is based upon. To underline the need of a re-interpretation of Art. 51(1) Jakab is presenting three already existing interpretations and evaluating their strengths and weaknesses. This part is followed by his own proposal on the establishment of the “semi-centralised judicial review”.

Jakab states that “if we aim for a fully-fledged value community which benefits all its citizens equally, then the Charter as such should gain full applicability in every case, even in purely domestic cases in domestic courts and even if there is no systemic failure of fundamental rights protection on a domestic level.” According to him this would mean, that the supremacy of EU law (the Charter) would introduce judicial review in Europe. Local courts could exercise this review and the unified application of EU law would be ensured through the preliminary reference procedure. In this way the EU could fulfill its goal to be a “community of fundamental rights”.

As Jakab’s theory contradicts the wording of Art. 51(1), the interpretation by the CJEU and the majority of the scholars, he is presenting solid doctrinal arguments for his theory. One the one hand he takes the Union Citizenship as a concept protecting citizens from their own Member States and therefore in a further step could trigger the application of the Charter. On the other hand he takes Art. 2 and 7 TEU into consideration which applied together with the Fransson Formula “basically all human rights violation can trigger the application of Art. 51(1) [of the Charter].” If the EU was to take such a measure, the conflicting values or interests at stake would arise between a Member State and a Member State court. In that way CJEU would only be involved indirectly through preliminary rulings.

For the best result regarding the implementation of fundamental rights, the CJEU should fully rely on the case law of the ECtHR and by doing so it would strengthen its moral authority. The author holds the view that CJEU would give teeth to the ECtHR because firstly, the EU enforcement mechanisms are stronger and secondly, because of the supremacy of EU law that makes it possible for national courts to stop the national measures from violating fundamental rights by simply not applying them.

The authors is perfectly aware of the fact that his suggestion on how to interpret Art. 51(1) is contradicting the way how most scholars and the CJEU is interpreting the law, but he states that “law is not a physical object that exists independently from us that we just have to recognise – law is what courts make of it”. Therefore Jakab is waiting for a European Marbury v. Madison decision arising from a preliminary reference in a small court in one of the EU Member States, to give the CJEU the possibility to make a judgment which will “transform the Charter into a real Charter for all European citizens, into a Charter which guarantees their freedoms even when domestic forums fail”.

Since its founding the Court has been expanding its competences taking activist decisions which sometimes were far away from what was written in the Treaties. The Author thinks that EU institutions are not willing to stop this approach and the Member States are not able to do so.

He thinks that the European integration process is not going to fail because of a “stronger protection of fundamental rights” but for “purely economic reasons” or “because of anti-constitutionalist and illiberal attempts within some of the MSs”. According to Jakab a decisive step towards a community of fundamental rights can be made with judicial statesmanship, patience for the right cases and a conscious strategy in the very near future. He is closing with an advice to the CJEU. ”For this purpose, the [CJEU] has to reassert its responsibility in both enhancing European integration and promoting the values of the European Union.”

The authors proposal of a creative re-interpretation of article 51(1) of the Charter is a promising way for the European Union to become a community of fundamental rights, which benefits all of its citizens equally and where nobody can be left behind. However, the proposal is quite hard to implement in reality. If the proposal was to be incorporated, the CJEU would be overloaded with cases and the protection of fundamental rights would not be efficient in the way the author wants it to be. The author argues that this is not a legal argument to reject fundamental rights, and maybe it is not, but it is still an argument against re-interpretation of article 51(1) of the Charter.

The re-interpretation would not be compatible with art. 6(2) TEU since it does not take account of the specific characteristics of EU law. According to art. 6(2) TEU, shall the Union accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms without affecting the Union’s competences as defined in the Treaties. The re-interpretation of article 51(1) of the Charter does not limit the possibility of Member States having higher human rights standards than EU law. Both art. 6 TEU and art. 51(2) of the Charter restricts the Charter from extending EU’s competences, the authors proposal is therefore not compatible with this provisions since it extends the competences of the EU.

The proposal also violates article 344 of the TFEU. If the re-interpretation of art. 51(1) would be introduced, art. 344 TFEU would be violated since it prevent the possibility that the ECtHR settle disputes between Member States on matters of EU law.

However, one can see that CJEU is developing its case law in the direction of the author’s proposal of a re-interpretation of the Charter. In the ERT case, the Court found that European human rights law not only applies to a Member State when it is implementing EU law but also when it acts within the scope of Union law. This approach is less restrictive and means that the Charter is applicable not only when the Member States implement an EU norm but also when they derogate therefrom. The Court’s approach to the interpretation of art. 51(1) of the Charter is less restrictive and more compatible with the author’s proposal. The court also introduced a wider interpretation of art. 51(1) of the Charter in the Åklagaren v. Hans Åkerberg Fransson case (commented on this blog here). According to art. 51(1) of the Charter, it is only applicable when Member States are implementing union law but the court ruled that EU fundamental rights should apply “within the scope of EU law”.

The external limits of the Charter is delimited and will probably be until the Court of Justice of the EU sets up a new test to identify them, but one can see that CJEU is developing its case law in the direction of the author’s proposal of a re-interpretation of the Charter.

by Mathias Davatz, Stephanie Winkler, Kristé Zvinklyté

Posted in Review | Tagged , , | 2 Comments