An Ever-Changing Union?: Perspectives on the Future of EU Law in Honour of Allan Rosas 9781509923663, 9781509923694, 9781509923687

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AN EVER-CHANGING UNION? Allan Rosas is one of the leading European Union jurists of his generation. His impact on the legal landscape of the EU has been immense. This collection brings together colleagues from the worlds of the judiciary, academia and practice to grapple with one of the key questions underpinning his contribution: is the trajectory of EU law one of everchanging union? With essays exploring a range of topics from national identity and European construction to Brexit, this collection is a fitting tribute to an unrivalled EU law career.

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An Ever-Changing Union? Perspectives on the Future of EU Law in Honour of Allan Rosas

Edited by

Koen Lenaerts Jean-Claude Bonichot Heikki Kanninen Caroline Naômé and

Pekka Pohjankoski

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Rosas, Allan, honouree.  |  Lenaerts, Koen, editor.  |  Bonichot, Jean-Claude, editor.  |  Kanninen, Heikki, editor.  |  Naômé, Caroline, editor.  |  Pohjankoski, Pekka, editor. Title: An ever-changing union? : perspectives on the future of EU law in honour of Allan Rosas / Edited by Koen Lenaerts, Jean-Claude Bonichot, Heikki Kanninen, Caroline Naômé and Pekka Pohjankoski. Description: Chicago : Hart Publishing, an imprint of Bloomsbury Publishing, 2019.  |  Includes bibliographical references and index. Identifiers: LCCN 2019029227 (print)  |  LCCN 2019029228 (ebook)  |  ISBN 9781509923663 (hardback)  |  ISBN 9781509923670 (Epub) Subjects: LCSH: Law—European Union countries.  |  European Union. Classification: LCC KJE958 .E977 2019 (print)  |  LCC KJE958 (ebook)  |  DDC 341.242/2—dc23 LC record available at https://lccn.loc.gov/2019029227 LC ebook record available at https://lccn.loc.gov/2019029228 ISBN: HB: 978-1-50992-366-3 ePDF: 978-1-50992-368-7 ePub: 978-1-50992-367-0 Typeset by Compuscript Ltd, Shannon

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EDITORS’ PREFACE I. Introduction European Union (EU) law is not static. Rather, in the words of Allan Rosas, the EU legal order is a ‘moving target’.1 That image is as apt as ever at a time when the EU is faced with populist forces that oppose further integration, when one of its Member States has, for the first time in history, decided to leave the EU, and when long-standing values such as the rule of law are under renewed threat. In addition, migration flows across the EU’s external borders as well as – subsequently – over its internal frontiers have catapulted a host of novel legal challenges to the top of the EU agenda, whilst the long-term future of Economic and Monetary Union remains an open question. Those macro-level developments have an impact on the lives of individuals, be they EU citizens or third country nationals who pursue the dream of a better life in Europe. Those developments raise difficult questions that the EU Courts are called upon to resolve. In so doing, they must uphold the rule of law within the EU, whilst reading the law in a way that enables European societies to overcome the challenges that they face. EU law is indeed a ‘moving target’, because it requires the EU Courts to strike the right balance between continuity and change. Continuity because those courts must always remain committed to upholding the values on which the EU is founded, and change because those courts must also contribute to building a more equal and fairer society for the next generation. The present volume pays homage to the legacy of Allan Rosas, one of the finest legal minds in the field of EU law, a long-serving judge at the Court of Justice, a respected academic and, above all, a person who has always been committed to promoting European values in and outside the courtroom. The content of the present volume seeks to reflect Allan Rosas’ career and scholarship. On the EU bench, Allan Rosas has played a leading role in shaping the Court’s case law over the past 18 years. A search of the Court of Justice’s case law database reveals that, during that time, he has served as juge rapporteur in more than 50 cases heard by the Full Court or the Grand Chamber of the Court, although this is only the tip of the iceberg as far as the breadth of his judicial work is concerned. Allan Rosas arrived at the Court of Justice in January 2002, after a successful career in academia, as an advisor to the Finnish government and at the European Commission Legal Service. It did not take long for Allan Rosas to begin making an impact at the Court. During his freshman year, he made his debut as rapporteur before the then Full Court in the seminal National Farmers’ Union case, which not only concerned the sensitive public health issue of so-called ‘mad cow disease’, but also raised the question whether a Member State had

1 A

Rosas and L Armati, EU Constitutional Law (Oxford, Hart Publishing, 2018) Preface to the Third Edition.

vi  Editors’ Preface standing to challenge, before its own courts, the validity of two Commission decisions that were addressed to it, despite the fact that the time-limit for bringing annulment proceedings before the EU Courts had expired.2 In order to protect legal certainty, the Court replied in the negative. In so doing, it referred, albeit implicitly, to the idea that the EU system of ­judicial protection is coherent and complete. That very same idea has constantly underpinned the law of the EU on remedies, and can actually be found in more recent judgments of the Court of Justice, such as that in Rosneft.3 Much has changed since the Court of Justice delivered that judgment. Indeed, when Allan Rosas first arrived at the Court, the EU and its law were very different from those that currently exist. To begin with, the Treaty of Nice had not entered into force and the 2004, 2007 and 2013 enlargements had yet to take place. The Court was then much smaller, with just 15 judges and eight Advocates General. Since 2002, the workload of the Court has steadily increased. For example, in 2002, the Court decided 513 cases, of which 241 were preliminary references. By contrast, in 2018, it decided 760 cases, of which 520 were preliminary references.4 In terms of scope, the list of subject matters on which the Court of Justice is more often called upon to rule has also expanded considerably. Whilst in 2002 agricultural cases were among those at the top of the list, in 2017 and 2018 cases pertaining to the Area of Freedom, Security and Justice (AFSJ) were among the most prevalent. Those statistical data reveal that European integration has continued to move forward according to two different, albeit complementary, dynamics, ie that of deepening and that of widening. The ‘deepening’ of European integration means, in essence, that the EU has consistently striven to strengthen the values on which it is founded. The EU has become more democratic, the fundamental rights discourse of the EU has been strengthened and the rule of law within the EU has been upheld both internally and externally. Three examples taken from the case law in which Allan Rosas was rapporteur may illustrate this point. First, with the entry into force of the Treaty of Lisbon, the Treaties … now establish symmetry between the procedure for adopting EU measures internally and the procedure for adopting international agreements in order to guarantee that the European ­Parliament and the Council enjoy the same powers in relation to a given field, in compliance with the institutional balance provided for by the Treaties. … While, admittedly, the role conferred on the [European] Parliament in relation to the [Common and Foreign Security Policy (CFSP)] remains limited, since [that EU institution] is excluded from the procedure for negotiating and concluding agreements relating exclusively to the CFSP, the fact remains that the Parliament is not deprived of any right of scrutiny in respect of that European Union policy.5

Accordingly, the Council has a duty to inform the European Parliament immediately and fully at all stages of the procedure of negotiation and conclusion of international 2 Case C-241/01 National Farmers’ Union, EU:C:2002:604. 3 Case C-72/15 Rosneft, EU:C:2017:236. 4 The figures given (gross figures) represent the total number of cases, without account being taken of the ­joinder of cases on the grounds of similarity (one case number = one case). See Cour of Justice, Annual Report 2002 and 2018, ‘Statistics of Judicial activity’, https://curia.europa.eu/jcms/jcms/Jo2_7032/en/. 5 Case C-658/11 Parliament v Council, EU:C:2014:2025, paras 56 and 69. See also A Rosas, ‘Recent Case Law of the European Court of Justice Relating to Article 218 TFEU’ in J Czuczai and F Naert (eds), The EU as

Editors’ Preface  vii a­ greements. That duty gives concrete expression to the principle of democracy on which the EU is founded. Thus, in Parliament v Council (EU-Tanzania Agreement),6 the Court of Justice annulled a CFSP decision by which the Council had concluded and ratified an ­international agreement with Tanzania on the conditions of transfer of suspected pirates, on the ground that no information was provided to the European Parliament by the Council on the progress of the negotiations pertaining to that agreement. Second, the fact that fundamental rights have progressively gained centre stage in the EU legal discourse can be illustrated by the seminal judgment of the Court of Justice in Omega Spielhallen.7 In that case, the Court gave impetus to the line of case law according to which the national rules based on fundamental rights protection may justify limitations on free movement. Most importantly, it interpreted fundamental rights as a means of allowing room for diversity when it comes to the Member States giving different weight to the common values that all Europeans embrace. This is so, for example, where a Member State decides that laser games – which involve participants pretending to shoot one another – are incompatible with human dignity, or where it decides that the use of titles of nobility is at odds with a republican form of government.8 Whilst Omega was decided prior to the entry into force of the Treaty of Lisbon and thus, of the Charter as a fully binding primary law text, that judgment remains good law and has served to explain how the EU system of fundamental rights protection operates. Third, the Court of Justice has made clear that the incorporation of international law obligations into the EU legal order can only take place in compliance with the rule of law within the EU, of which fundamental rights – as recognised in the Charter – are part and parcel. Ensuring such compliance is of paramount importance when it comes to imposing restrictive measures on individuals. As juge rapporteur in more than 20 cases involving such measures, Allan Rosas has contributed to paving the way for determining the legal requirements with which EU restrictive measures must comply in a post-Kadi I scenario.9 As to the second dynamic, the scope of European integration has become increasingly broad, both in terms of the number of actors involved in the EU decision-making process and in terms of the subject matters over which the EU enjoys legislative and regulatory powers. European integration has crossed the Rubicon, moving on from the internal market paradigm as it now also seeks to create and develop an area without internal frontiers where citizens may move freely and securely and where the Member States may trust that justice will be administered transnationally. That EU objective entails the recognition and enforcement of national measures that may impose limitations on the exercise of fundamental

a Global Actor: Bridging Legal Theory and Practice. Liber Amicorum in Honour of Ricardo Gosalbo Bono (Leiden, Brill-Nijhoff, 2017) 363. 6 Case C-263/14 Parliament v Council, EU:C:2016:435. 7 Judgment of 14 October 2004, Omega, C-36/02, EU:C:2004:614. 8 Case C-208/09 Sayn-Wittgenstein, EU:C:2010:806. 9 See, eg, Cases C-548/09 P Bank Melli Iran v Council, EU:C:2011:735; C-380/09 P Melli Bank v C ­ ouncil, EU:C:2012:137; C-130/10 Parliament v Council, EU:C:2012:472; C-239/12 P Abdulrahim v Council and ­Commission, EU:C:2013:331; C-630/13 P Anbouba v Council, EU:C:2015:247; C-605/13 P Anbouba v Council, EU:C:2015:248; C-263/14 Parliament v Council, EU:C:2016:435; and C-45/15 P Safa Nicu Sepahan v Council, EU:C:2017:402. See, in this regard, A Rosas, ‘EU Sanctions, Security Concerns and Judicial Control’ in E Neframi and M Gatti (eds), Constitutional Issues of EU External Relations Law (Baden-Baden, Nomos, 2018).

viii  Editors’ Preface rights. Thus, in order to ensure the uniform interpretation and application of EU norms pertaining to the AFSJ, the Court of Justice had to develop a new procedural framework that would allow it to deliver its judgments expediently in situations where, for example, a person is in custody or a child is abducted by one of his or her parents. Allan Rosas’ imprint is clearly visible in that regard. Not only did he chair the Court’s Committee on procedural matters during the overhaul of the Court’s Rules of Procedure,10 he also presided over the Chamber that heard the first cases dealt with under the urgent preliminary ruling procedure (PPU).11 The widening of the European integration project has also given rise to new and delicate questions that have, for example, called upon the Court of Justice to examine the application of old principles to a new legal context. This is notably the case of the principles of mutual recognition and mutual trust. The judgment of the Court in NS and Others, in which Allan Rosas was juge rapporteur, may illustrate that point.12 In those Joined Cases, the Court stressed the importance of mutual trust as a constitutional principle that underpins the entire AFSJ but that may, under exceptional circumstances, be limited by the need to ensure protection of fundamental rights. Another example that illustrates that dynamic of widening is the case law on access to documents. Undeniably that case law has been influenced, in a positive way, by Nordic democratic traditions that support the contention that the principle of transparency is of the essence in order for government officials to remain accountable. That influence has taken place not only by means of Member States, such as Sweden and Finland, bringing actions for annulment and appeals before EU Courts, but also by the involvement of civil societies across Europe in defending that principle. The Court has also contributed to developing a ‘transparent Europe’, whilst stressing the fact that transparency is not absolute but must – where democracy, fundamental rights and the rule of law so require – be subject to limitations. For example, in Commission v Breyer,13 another case in which Allan Rosas was juge rapporteur, the Court of Justice was called upon to interpret the fourth subparagraph of Article 15(3) TFEU, a provision introduced by the Treaty of Lisbon that states that the Court of Justice is subject to the right of access to documents but only when exercising its administrative tasks.14 Contrary to the views of the Commission, the Court held that that Treaty provision could not be interpreted as excluding from the scope of application of Regulation No 1049/2001 documents relating to court proceedings that are drawn up by a Member State and in the possession of the Commission.15 This was because such an ­interpretation would be at odds with the ‘widening’ of the scope of that right, by virtue

10 See Rules of Procedure of the Court of Justice of 25 September 2012 [2012] OJ L265/1. 11 C-195/08 PPU Rinau, EU:C:2008:406. See, in this regard, A Rosas, ‘Justice in Haste, Justice Denied? The ­European Court of Justice and the Area of Freedom, Security and Justice’ (2009) 11 Cambridge Yearbook of E ­ uropean Legal Studies 1. 12 Case C-411/10 and C-493/10 NS and Others, EU:C:2011:865. 13 Case C-213/15 P Commission v Breyer, EU:C:2017:563. 14 The fourth subpara of Art 15(3) TFEU reads as follows: ‘The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.’ 15 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43.

Editors’ Preface  ix of the Treaty of Lisbon, notably in so far as it now covers not only documents of all EU ­institutions but also those of bodies, offices and agencies of the EU. By following the present text up to this point, our faithful reader will no doubt have understood that Allan Rosas has played an important role in shaping the case law of the Court of Justice that has deepened and widened European integration. However, the impact of his ideas is much broader and has transcended the judicial sphere. Extrajudicially, his wide-ranging research encompasses not only most areas of EU law, but also administrative law and public international law.16 In the field of EU law, in particular, his scholarship has marked a generation of academics, civil servants and practitioners by influencing the way in which they read EU law. More specifically, his writings have focused on providing a constitutional perspective on the EU and its law,17 on explaining the role that fundamental rights are called upon to play in the European integration project18 and on providing a critical assessment of the interplay between international law and EU law.19 Mirroring Allan Rosas’s judicial and academic work, this volume is divided into four parts, that are described below in sections II to V of the present text.

II.  The Changing Union The six chapters of the first part of the volume address the changing nature of the Union itself. The opening chapter by Koen Lenaerts analyses the impact of the refugee crisis of the past few years on the development of EU asylum law. Describing both the EU’s internal and external responses to the crisis, the chapter presents some of the challenges the EU

16 See, eg, A Rosas, The Legal Status of Prisoners of War. A Study in International Humanitarian Law Applicable in Armed Conflicts (Helsinki, Suomalainen Tiedeakatemia, 1976), and T Koivurova and A Rosas, ‘The CBSS as a vehicle for institutionalised governance in the Baltic Sea Area, in comparison with its two sister organisations in the north’ (2018) 98 Marine Policy 211. 17 See, eg, A Rosas and L Armati, n 1 above. See also A Rosas, ‘Separation of Powers in the European Union’ (2007) 41 The International Lawyer 1033, and A Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2008) 1 European Journal of Legal Studies 121. 18 See, eg, A Rosas and H Kaila, ‘L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: un premier bilan’ (2011) 16 Il Diritto dell’Unione Europea 1; A Rosas, ‘The Charter and Universal Human Rights Instruments’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1685; A Rosas, ‘Five Years of Charter Case Law: Some Observations’ in S. de Vries et al (eds), The EU Charter of Fundamental Rights as a Binding Instrument Five Years Old and Growing (Oxford, Hart Publishing, 2015) 11, and A Rosas, ‘The European Union and Fundamental Rights/Human Rights: Vanguard or Villain?’ (2017) 7 Adam Mickiewicz University Law Review 7. 19 See, eg, B Brandtner and A Rosas, ‘Human rights and the external relations of the European Community: an analysis of doctrine and practice’ (1998) 8 European Journal of International Law 468; A Rosas, Case Note on Portugal v Council of the European Union (C149/96) (2000) 37 Common Market Law Review 797; A Rosas, ‘Implementation and enforcement of WTO dispute settlement findings: an EU perspective’ (2001) 4 Journal of International Economic Law 131; A Rosas, ‘With a Little Help from My Friends: International Case-Law as a Source of Reference for the EU Courts’ (2006) 5 The Global Community YILJ 220; A Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’ (2011) 34 Fordham International Law Journal 1304 (2011); A Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do Such Distinctions Matter?’ in I Govaere and Others (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden, Brill-Nijhoff, 2014); A Rosas, ‘EU External Relations: Exclusive Competence Revisited’ (2015) 38 Fordham International Law Journal 1073, and A Rosas, ‘The EU and international dispute settlement’ (2017) 1 Europe and the World 1.

x  Editors’ Preface Courts have faced in these situations of urgency, political pressures and the need for effective j­udicial protection. With emphasis on the Court of Justice’s role in upholding the rule of law, Lenaerts discusses, inter alia, the EU’s mandatory relocation scheme and the EU-Turkey Statement on migrant flows, as well as the need to guarantee access to justice for persons seeking asylum and a fair sharing of responsibility among the Member States. In the second chapter, Christiaan Timmermans assesses the evolution of the principle of mutual trust in EU law, contrasting the idea of mutual recognition in the internal market with its counterpart within the AFSJ. Timmermans demonstrates that mutual trust, originally linked to mutual recognition, fully emerged following Opinion 2/13 as a fundamental principle of EU law, albeit subject to certain limits. While Timmermans critically evaluates the Court of Justice’s reasoning concerning the principle of mutual trust in the context of the Draft Agreement on the EU’s accession to the ECHR in that Opinion, he does not rule out the possibility that a solution for the EU’s accession might be found in the future. In the third chapter, José Narciso da Cunha Rodrigues reflects on the concept of national identity and its significance for the European project. After providing an overview of national identity in the context of EU law and in the case law of several constitutional courts of the Member States, Cunha Rodrigues suggests that that concept has a constitutional dimension. However, for him, national identity is not static but rather evolves over time owing to the interdependence that exists between states, which makes defining it a challenge. By linking national identity with that of the individual, Cunha Rodrigues underlines its importance as an essential component of European integration. Síofra O’Leary’s chapter describes and evaluates the development of the law relating to the acquisition and loss of nationality and the enjoyment of citizenship-type rights by non-nationals under the ECHR and EU legal regimes. O’Leary highlights certain similarities in the approaches of the European courts in Strasbourg and Luxembourg as regards, in particular, the way in which the relevant rights are framed and limits are imposed on states’ discretion in connection with issues such as the revocation of nationality or expulsion. Demonstrating that certain EU rules are reminiscent of more classic rules of international law, O’Leary nonetheless recognises the incremental progress that has been made following the creation of EU citizenship. Looking at how the still-recent sovereign debt crisis in Europe and beyond has shaped EU law, the chapter by Miguel Poiares Maduro reflects on the ways in which that crisis has clarified the law on public debt relief. Poiares Maduro’s analysis focuses especially on deciphering what limits, if any, EU law imposes on such debt relief. Through an analysis of the concepts of financial assistance and debt relief, as well as the relevant legal texts and the Court of Justice’s case law, he discusses the need to preserve market discipline and to subject financial assistance to strict conditionality. In the last chapter of this section, Olli Rehn examines past shortcomings in – and future challenges for – the EU’s economic governance. Discussing various economists’ macroeconomic philosophies, Rehn assesses the capacity of markets to keep economies on a sound basis in general, and those within Economic and Monetary Union (EMU) in particular. While Rehn describes the failures of market discipline and approves of the EU’s fiscal policy rules, monitored and enforced by Union bodies, he concludes that both rules and market discipline are needed in the EU and will continue to be needed in the future.

Editors’ Preface  xi

III.  The EU’s Judicial Actors: Evolving Roles The six chapters of the second part of the volume describe and evaluate the evolving role of various judicial actors within the EU legal order. In the opening chapter, Vassilios Skouris discusses the absence of dissenting opinions in the EU Courts. Following a presentation of arguments both in favour of and against dissents, Skouris considers their relative merits and disadvantages in the particular context of the Court of Justice. Emphasising the need for the Court of Justice to speak with one voice in the interests of clarity, Skouris considers that the relatively high number of judges sitting in cases before that Court, as well as the need to engage dissenters in helping formulate the final decisions are factors that continue to militate against the use of dissenting opinions at the Court both now and in the future. In the second chapter of this part, Heikki Kanninen reflects on the expanding role of the General Court within the judicial-institutional framework of the Court of Justice of the European Union. Following a description of the genesis and development of the General Court as an independent judicial body, Kanninen evaluates its role both in the administrative and the judicial sphere, as it currently emerges from a period of reforms. Considering that the present resources of the General Court provide an opportunity to reform the EU judicial system as a whole, Kanninen looks to the future by discussing a potential transfer of jurisdiction from the Court of Justice to the General Court, as well as the need for internal reorganisation of the latter. In the next chapter, Niilo Jääskinen considers the phenomenon of judicial dialogue between the Court of Justice and the supreme administrative courts of the Member States. He analyses this interaction from three angles in particular: first, a quantitative analysis of preliminary references from national supreme administrative courts, second, the judicial dialogue between the Court of Justice and the Supreme Administrative Court of Finland, and, third, that between the Court of Justice and a number of other national administrative courts. Jääskinen’s analysis portrays the dialogue between these judicial actors as involving large volumes and questions of both greater and lesser importance and as having a distinct and significant, albeit incremental, impact on the development of EU law. Lorna Armati’s chapter provides another perspective on judicial dialogue between national supreme courts and the Court of Justice. Armati’s contribution focuses on forms of combative and conciliatory judicial dialogue by comparing and contrasting the Danish Supreme Court’s preliminary reference in Ajos with that of the Italian Constitutional Court in the so-called Taricco II case. In addition to an exposition of the relevant EU law background to the debate, her analysis encompasses a broader reflection on the role of the preliminary ruling mechanism within the EU’s judicial system and the implications that certain national courts’ confrontational style may have on that firmly established – yet ultimately fragile – system. In the fifth chapter of this part, Clemens Ladenburger reflects on the principle of mutual trust with a particular focus on some of its necessary corollaries. In his view, these include, notably, independent judicial authorities, a need for common standards on criminal procedure and penitentiary systems, as well as for common values and a common level of fundamental rights protection under the EU Treaties. As Ladenburger proceeds to

xii  Editors’ Preface examine specific questions such as the independence of prosecutors for issuing ­European Arrest Warrants, the EU’s powers to address prison conditions in Member States or the extension of mutual trust to third countries (including in the case of the United ­Kingdom’s exit from the EU, ie Brexit), it becomes apparent that the application of the principle of mutual trust remains a complex exercise both for the EU legislator and national courts alike. The final chapter of this part of the volume is by Jean-Louis Dewost, who pays tribute to Allan Rosas’ work acting as an agent of the European Commission before the Court of Justice. The compilation of cases in which Rosas acted as the Commission’s agent includes such diverse areas of law as electricity excise duties, international aviation agreements and fishing licences. As Dewost recalls these cases, he provides a glimpse into the earlier career of the dedicatee of this volume.

IV.  Rights of the Individual in Times of Change The six chapters in the third part of the volume deal with rights of individual actors as the EU evolves. The first chapter, by Marc Jaeger, presents and evaluates a recently introduced procedure allowing for confidential treatment of security-related material before the General Court. After describing the genesis of the new procedure, Jaeger elaborates on the reasons that led to its adoption and on related case law of the EU Courts that laid its jurisprudential groundwork. Although, at the time of writing, the new procedure is yet to be used in practice, Jaeger provides some reflections concerning its potential future application. In the second chapter, Marek Safjan and Dominik Düsterhaus argue that certain rights guaranteed under EU law give rise to a ‘right to have rights’ for EU citizens, which the courts, including the Court of Justice, must protect. The authors suggest that this right may also be significant in assessing rule of law violations affecting the relevant rights that EU citizens may derive from primary EU law, with particular reference to recent developments in Poland. Although aware of the jurisdictional limitations of the Court in deciding cases, Safjan and Düsterhaus note the complementarity of guarantees provided by preliminary references and infringement proceedings for judicial protection, and underline the inalienability of the rule of law in the Member States and its importance for the proper functioning of the EU legal order. Küllike Jürimäe’s chapter on the cross-border mobility of companies in the EU analyses the recent developments in the Court of Justice’s case law regarding the right of establishment for legal persons. Following an overview of the classic case law in this field and a thorough analysis of the more recent Polbud judgment, Jürimäe takes account of the inherent restrictions to which the Court’s role in the preliminary ruling procedure is subject. According to her, the requisite legal certainty for economic operators might be best achieved through legislative action and the Commission’s recent proposal on corporate cross-border mobility is thus a positive development. In the fourth chapter of this part, Heidi Kaila examines how the law on the free ­movement of goods has adapted to more general developments in EU law. Kaila evaluates the ever more diverse reasons advanced to justify restrictions on the free movement

Editors’ Preface  xiii of goods. Her taxonomy of accepted justifications reveals that the right to free movement of goods is qualified by various competing considerations; proportionate restrictions can be justified on grounds such as fundamental rights protection, respect for the national identity and the proper functioning of society, as well as the protection of health, consumers or the environment. Considering the law in this field to be complex, she welcomes efforts to clarify and codify it in the future. Eleanor Sharpston’s chapter discusses the place of religion in EU law, and the Court of Justice’s recent case law on discrimination on grounds of religion in particular. Looking at four recent cases (G4S Secure Solutions, ADDH, Egenberger and IR), Sharpston evaluates the Court’s approach, detecting certain inconsistencies in the case law to date. While Sharpston considers the four cases to be comparable in that they each require, at the end of the day, the balancing of an individual’s religious freedom (including the right not to ­practice religion) and an employer’s right to neutrality or to enforce a particular religious ethos, she notes that finding that balance remains a thorny challenge for the future. In the final chapter in this part, Philip Alston assesses the impact of austerity policies on the protection of human rights. Following an introductory definition of ‘austerity’, Alston illustrates the effects of austerity-driven policy by using the United Kingdom as a case study. He then evaluates how international human rights bodies have responded to the challenge that austerity measures pose to the protection of human rights. Alston concludes that the responses have so far been largely inadequate. As he identifies future challenges, he also formulates proposals for a way forward.

V.  EU External Relations and New Horizons The six chapters of the final part of the volume address issues involving the EU’s international agreements, its external relations more broadly, and Brexit. In the opening chapter of this part, Sacha Prechal discusses the legal implications of the EU’s accession to the ­Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence. Following a brief overview of its contents, Prechal undertakes an analysis of the EU institutions’ proposals concerning the legal bases for the EU’s signature of and ­accession to the Convention. Acknowledging that the Convention is to be concluded as a ‘mixed’ agreement, Prechal critically evaluates the ongoing accession debates and reflects on the extent to which the conclusion of the Convention by the EU might fall within the Union’s exclusive external competence. Joni Heliskoski’s chapter assesses the conclusion of the EU’s international agreements in fields falling within the non-exclusive competence of the EU. In the light of the recent case law of the Court of Justice, Heliskoski discusses the possibilities for the EU either to exercise its non-exclusive external competence without Member State participation or to refrain from exercising that competence and to conclude ‘facultative’ mixed agreements. Considering that the use of the EU’s shared external competence is likely to continue to be characterised by the conclusion of such mixed agreements, Heliskoski points to a number of issues which might dissuade the Member States from resorting to facultative mixity in the future.

xiv  Editors’ Preface The third chapter of this part, by Jean-Claude Bonichot, analyses recent ­developments regarding the law on extradition of persons between EU Member States and third countries. Drawing parallels with the Court of Justice’s classic free movement of persons case law, Bonichot discusses the evolving protection against extradition of EU citizens in light of the recent Petruhhin, Pisciotti and Raugevicius trilogy of cases. In his view, these rulings, as well as certain other recent developments in this field, highlight the growing importance of EU citizenship, the particular nature of EU law’s perspective on the law of extradition and the crucial role of the Court in reshaping, where necessary, its classic case law to meet new challenges. In the fourth chapter, Pekka Pohjankoski evaluates the legal feasibility of expelling a Member State from the EU. After an introduction to the law concerning expulsion of states from international organisations, Pohjankoski addresses, on the one hand, the potential powers of the Union to expel one of its constituent members and, on the other hand, the possibility for the other Member States to rely collectively on general international law to expel, as a last-resort remedy, one of their peers. Whilst cautioning against any such expulsion, Pohjankoski concludes that such a measure could, in theory at least, be envisaged if all the other autonomous remedies provided for by the EU legal order had first been exhausted. David Edward’s chapter reflects on the lessons to be learned from Brexit as a larger phenomenon rather than as a specific event. By focusing on the concepts of ‘sovereignty’ and ‘immigration’, Edward demonstrates how widespread misunderstandings of these ideas have had a detrimental effect on political discourse and outcomes, particularly in the UK. As he challenges certain of the more misguided arguments, Edward contends that strict compliance with the terms of the EU Treaties is a strong antidote against encroachments on national sovereignty and that the internal market, by its very nature, requires free­ movement of persons between Member States. In the final chapter of the volume, Aindrias Ó Caoimh evaluates the change that the exit clause of Article 50 TEU has had on the fundamental nature of the ‘ever closer union’. Describing how the introduction of that provision by the Lisbon Treaty changed the permanent Union into one where membership is reversible, Ó Caoimh considers the substantial impact that a Member State’s exit has on the Union, as well as on the departing Member State and its citizens. Expressing doubt as to whether those who framed the EU Treaties fully understood the full magnitude of the change in the fundamental philosophy of those treaties when they introduced Article 50 TEU, Ó Caoimh advocates revision of those treaties in a manner that is faithful to their original philosophy.

VI.  Concluding Remarks This volume is a small token of gratitude for everything that Allan Rosas has done for the development of EU law over his 18 years of service at the Court of Justice. The Editorial Committee has endeavoured to bring together an outstanding group of EU law experts all of whom have the pleasure of knowing him personally. Throughout the volume, readers will discover that the contributors do not limit themselves merely to describing the existing law and case law, but also provide thorough

Editors’ Preface  xv explanations as to the reasons why they believe that the EU legislator and the Court of Justice, respectively, came to a given outcome. Written in a clear and entertaining style, this book seeks to provide a solid analytical basis for future debates about the EU. It is a thoughtful and rigorous study that addresses a challenging set of questions for scholars and students alike. Allan Rosas will be greatly missed at the Court. His invariably incisive questions during hearings that made lawyers and agents struggle, his openness to different points of views during deliberations, his capacity to build consensus as President of Chamber, his willingness to contribute as a team-player and his positive attitude have been, and will continue to be, a great source of inspiration for his colleagues at the Court. But above all, his respect for the Court and his firm believe in the idea of justice for which it stands will continue to operate as a constant reminder that the EU is, first and foremost, a Union based on the rule of law.

xvi

CONTENTS Editors’ Preface����������������������������������������������������������������������������������������������������������������������������� v List of Contributors������������������������������������������������������������������������������������������������������������������� xxi PART I THE CHANGING UNION 1. The Court of Justice of the European Union and the Refugee Crisis����������������������������������� 3 Koen Lenaerts 2. How Trustworthy is Mutual Trust? Opinion 2/13 Revisited��������������������������������������������� 21 Christiaan Timmermans 3. National Identity and European Construction������������������������������������������������������������������ 35 José Narciso da Cunha Rodrigues 4. Nationality and Citizenship: Integration and Rights-Based Perspectives������������������������� 51 Síofra O’Leary 5. EU Law and Sovereign Debt Relief������������������������������������������������������������������������������������ 75 Miguel Poiares Maduro 6. Economic Governance in a Changing Union: Fiscal Rules and Market Discipline in the Euro Area���������������������������������������������������������������������������� 83 Olli Rehn PART II THE EU’S JUDICIAL ACTORS: EVOLVING ROLES 7. Judging at the Court of Justice of the European Union: Is there a Need for Dissenting Opinions?����������������������������������������������������������������������������������������������������� 99 Vassilios Skouris 8. The Future of the General Court Within the Court of Justice of the European Union������������������������������������������������������������������������������������������������������ 111 Heikki Kanninen 9. Judicial Dialogue between National Supreme Administrative Courts and the Court of Justice of the European Union�������������������������������������������������������������� 129 Niilo Jääskinen

xviii  Contents 10. Acts of Rebellion, or the Enemy Within? A Consideration of the Combative Ruling of the Supreme Court of Denmark and the Imperative of Genuine Judicial Dialogue�������������������������������������������������������������������������������������������� 145 Lorna Armati 11. The Principle of Mutual Trust in the Area of Freedom, Security and Justice: Some Reflections on its Corollaries���������������������������������������������������������������������������������� 163 Clemens Ladenburger 12. Allan’s Legal Battles before the Court, Acting as the Commission’s Agent���������������������� 177 Jean-Louis Dewost PART III RIGHTS OF THE INDIVIDUAL IN TIMES OF CHANGE 13. Balancing Security Reasons and the Adversarial Principle: The New Article 105 of the Rules of Procedure of the General Court�������������������������������������������� 185 Marc Jaeger 14. The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it���������������������� 201 Marek Safjan and Dominik Düsterhaus 15. From Daily Mail to Polbud: An ‘Ever-Changing’ Case Law on Cross-Border Mobility of Companies?���������������������������������������������������������������������������������������������������� 213 Küllike Jürimäe 16. Free Movement of Goods in a Changing Union: The Evolving Relationship Between Fundamental Rights, Grounds of Justification and Mandatory Requirements��������������������������������������������������������������������������������������������������������������������� 227 Heidi Kaila 17. Religion in the Workplace: When is Enforcing a Religious Ethos Acceptable? and When is Neutrality Discrimination?������������������������������������������������������������������������� 247 Eleanor Sharpston 18. The Impact of Austerity on the Protection of Human Rights������������������������������������������ 261 Philip Alston PART IV EU EXTERNAL RELATIONS AND NEW HORIZONS 19. The European Union’s Accession to the Istanbul Convention������������������������������������������ 279 Sacha Prechal 20. The Exercise of Non-Exclusive Competence of the EU and the Conclusion of International Agreements��������������������������������������������������������������������������������������������� 293 Joni Heliskoski

Contents  xix 21. Extradition and EU Law: An Unexpected ‘Pas de Deux’������������������������������������������������ 311 Jean-Claude Bonichot 22. Expulsion of a Member State from the European Union: Ultimate Remedy?���������������� 321 Pekka Pohjankoski 23. The Lessons of Brexit��������������������������������������������������������������������������������������������������������� 339 David Edward 24. From Rome to Lisbon and from Lisbon to Brexit������������������������������������������������������������ 347 Aindrias Ó Caoimh Index����������������������������������������������������������������������������������������������������������������������������������������� 361

xx

LIST OF CONTRIBUTORS Philip Alston, John Norton Pomeroy Professor of Law, New York University School of Law Lorna Armati, Member of the Legal Service of the European Commission Jean-Claude Bonichot, Judge at the Court of Justice José Narciso da Cunha Rodrigues, former Judge at the Court of Justice Jean-Louis Dewost, former Director General, Legal Service of the European Commission Dominik Düsterhaus, Legal Secretary at the Court of Justice David Edward, former Judge at the Court of Justice Joni Heliskoski, Director, EU Litigation, Ministry for Foreign Affairs, Finland Niilo Jääskinen, Judge at the Court of Justice Marc Jaeger, President of the General Court Küllike Jürimäe, Judge at the Court of Justice Heidi Kaila, Senior Adviser for Legislative Affairs, Prime Minister’s Office, Finland Heikki Kanninen, Judge at the General Court Clemens Ladenburger, Principal Legal Adviser, Legal Service of the European Commission Koen Lenaerts, President of the Court of Justice of the European Union Caroline Naômé, Legal Secretary at the Court of Justice Aindrias Ó Caoimh, former Judge at the Court of Justice Síofra O’Leary, Judge at the European Court of Human Rights Pekka Pohjankoski, Legal Secretary at the Court of Justice Miguel Poiares Maduro, Director, School of Transnational Governance, European University Institute, former Advocate General at the Court of Justice Sacha Prechal, Judge at the Court of Justice Olli Rehn, Governor, Bank of Finland Marek Safjan, Judge at the Court of Justice Eleanor Sharpston, Advocate General at the Court of Justice Vassilios Skouris, former President of the Court of Justice of the European Union Christiaan Timmermans, former Judge at the Court of Justice

xxii

part i The Changing Union

2

1 The Court of Justice of the European Union and the Refugee Crisis KOEN LENAERTS*

Between 2015 and 2016, Europe witnessed the largest inflow of applicants for international protection since World War II. This was in large part due to the war in Syria, which has displaced over 5 million people. As a result of the application of the ‘irregular crossing’ criterion set out in the Dublin III Regulation, that massive and sudden inflow of applicants for international protection put the asylum systems of Greece and Italy under enormous pressure.1 The impossibility of those two Member States coping with such a massive inflow of people gave rise to secondary movements towards northern Europe, prompting Member States such as Germany, Austria, France, Denmark and Sweden to reinstate temporary border controls within the Schengen Area.2 The EU and its Member States’ response to the crisis comprised both an internal and external dimension. Internally, the Council adopted two decisions that established a temporary emergency relocation scheme whose objective was to help Greece and Italy to deal with the sudden and massive inflow of migrants that took place in 2015. Those two decisions provided for the relocation from Italy and Greece of 160,000 newly arrived asylum-seekers to other Member States in accordance with a system of quotas. Whilst the first Council decision provided for a system of voluntary quotas in respect of 40,000 persons,3 the second laid down a system of mandatory quotas for the relocation of an additional 120,000 people (the ‘mandatory relocation scheme’).4 Externally, the EU-Turkey statement of

* All opinions expressed herein are personal to the author. 1 Art 13(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an ­application for international protection lodged in one of the Member States by a third-country national or a stateless person, [2013] OJ L 180/31. 2 See UNHCR, Global Reports 2015 and 2016, Regional Report on Europe, available at: www.unhcr.org/ resources-and-publications.html. See A Niemann and N Zaun, ‘EU Refugee Policies and Politics in Times of Crisis: Theoretical and Empirical Perspectives’ (2018) 56 JCMS (special issue) 3, and P Berthelet, ‘Les conséquences des crises migratoires de 2011 et de 2015, une solidarité européenne encore très imparfaite’ (2018) Cahiers de droit européen 395. Regarding the temporal reinstatement of internal border controls, see Opinion of AG Szpunar in Case C‑444/17 Préfet des Pyrénées-Orientales EU:C:2018:836. That case is currently pending. 3 Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of i­ nternational protection for the benefit of Italy and of Greece, [2015] OJ L239/146. 4 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of ­international protection for the benefit of Italy and Greece, [2015] OJ L 248/80.

4  Koen Lenaerts 18 March 2016 provided that all new irregular migrants crossing from Turkey to Greece who had not lodged an asylum application, or whose application had been declared unfounded or inadmissible, were to be returned to Turkey.5 That statement also established the ‘1:1 resettlement scheme’: it was agreed that for every Syrian being returned to Turkey from Greece, another would be resettled from Turkey to the EU, taking into account the UN Vulnerability Criteria. That resettlement scheme was, however, limited to 72,000 persons and was, on the EU side, to take place on a voluntary basis. Furthermore, those two dimensions were intertwined: the mandatory relocation scheme was subsequently amended so as to deduct from the mandatory quotas the number of people whose relocation took place under the 1:1 resettlement scheme.6 As to the persons seeking international protection who did not fall within the scope of application of any of the measures mentioned above, the Common European Asylum System (the ‘CEAS’), in general, and the Dublin  III Regulation, in particular, continued to apply. This was because no major overhaul of the CEAS was undertaken as regards the way in which the Member State responsible for examining the application for international protection was to be determined. Accordingly, the role that the Court of Justice of the European Union (the ‘Court of Justice’ or the ‘Court’) was called upon to play during the refugee crisis was twofold. On the one hand, in Joined Cases Slovakia and Hungary v Council and in NF, NG and NM v Council,7 the Court of Justice and the General Court were respectively asked to exercise their powers of judicial review in order to determine whether the mandatory relocation scheme and the EU-Turkey statement were valid. On the other hand, national courts asked the Court of Justice to interpret existing EU legislation on asylum, notably the Dublin III Regulation, in situations where hundreds of thousands of applicants for international protection crossed the Member States located on what was known as the ‘western Balkans route’8 or arrived in the EU via the central Mediterranean route.9 In examining that role, I wish, by means of the present contribution, to pay special tribute to my friend and colleague Allan Rosas, whose extensive work, as both a judge and an academic, is of immense value for the legal community. The chapter is divided into two sections. Section I examines the way in which the EU Courts reviewed the legality of the measures adopted to counter the crisis. Section II focuses on the interpretation of EU law on asylum in times of crisis. The conclusion that will be drawn on the basis of that analysis taken as a whole is that the role of the EU Courts is to ensure that justice within the EU neither bends nor breaks in such times.10 5 Council’s website, Press Release No 144/16, available at: www.consilium.europa.eu/en/press/press-releases/ 2016/03/18/eu-turkey-statement/pdf. 6 Council Decision (EU) 2016/1754 of 29 September 2016 amending Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, [2016] OJ L268/82. 7 See judgment of 6 September 2017 in Joined Cases C‑643/15 and C‑647/15 Slovakia and Hungary v C ­ ouncil EU:C:2017:631, and orders of 28 February 2017 in Cases T‑192/16 NF v European Council EU:T:2017:128, T‑193/16 NG v European Council EU:T:2017:129, and T‑257/16 NM v European Council EU:T:2017:130. 8 See judgments of 16 February 2017 in Case C‑578/16 PPU C K and Others EU:C:2017:127; of 26 July 2017 in Case C‑490/16 AS EU:C:2017:585 and in Case C‑646/16 Jafari EU:C:2017:586; of 25 October 2017 in Case C‑201/16 Shiri EU:C:2017:805, and of 13 November 2018 in Joined Cases C-47/17 and C-48/17 X and X EU:C:2018:900. 9 See judgment of 16 February 2017 in Case C‑670/16 Mengesteab, EU:C:2017:587. 10 See D Thym, ‘Judicial maintenance of the sputtering Dublin system on asylum jurisdiction: Jafari, A.S., ­Mengesteab and Shiri’ (2018) 55 CML Rev 549, at 557.

The Court of Justice of the European Union and the Refugee Crisis  5

I.  Judicial Review of the EU’s Response to the Crisis It is important to note at the outset that, in Slovakia and Hungary v Council, on the one hand, and NF, NG and NM v European Council, on the other, the EU Courts examined different questions. In the former cases, the Court of Justice looked at the way in which the Council may exercise its ‘emergency powers’ to derogate, albeit temporarily and in a circumscribed way, from the Dublin system. By contrast, in the latter cases the question examined was whether the EU-Turkey statement was an act attributable to the European Council establishing an international agreement between the EU and Turkey, or whether it was attributable to the Heads of State or Government of the Member States.

A.  The Mandatory Relocation Scheme In Slovakia and Hungary v Council, those two Member States each brought an action – which was ultimately unsuccessful in both cases – for annulment of Council Decision (EU) 2015/1601 establishing the mandatory relocation scheme (the ‘contested decision’), in which they called into question, inter alia, the choice of Article 78(3) TFEU as the legal basis for that decision11 as well as its proportionality.12

i.  Article 78(3) TFEU as Legal Basis Slovakia and Hungary both argued that the contested decision was, in fact, a legislative act adopted under a non-legislative procedure. In their view, Article 78(3) TFEU did not provide the proper legal basis for the adoption of legislative measures, let alone for the adoption of measures that derogated from a legislative act such as the Dublin  III R ­ egulation, as this would amount to a circumvention of the legislative procedure provided for in ­Article 78(2) TFEU. At the outset, the Court of Justice held that only acts adopted on the basis of a Treaty provision that expressly refers either to the ordinary legislative procedure or to the special legislative procedure are to be considered legislative acts. This was not the case of Article 78(3) TFEU which contains no such reference, meaning that the contested decision was not a legislative act.13 Moreover, relying on a literal, systematic and teleological interpretation of Article 78(3) TFEU, the Court held that provisional measures adopted under that Treaty provision could indeed derogate from legislative acts. First, nothing in the wording of Article 78(3) TFEU suggests that the concept of ‘provisional measures’ is to be interpreted as being limited

11 Art 78(3) TFEU enables the Council to confront an emergency situation created by a sudden inflow of thirdcountry nationals that affects one or more Member States, by adopting provisional measures for the benefit of those Member States. 12 For a complete overview of that case, see B De Witte and E Tsourdi, ‘Confrontation on relocation – The Court of Justice endorses the emergency scheme for compulsory relocation of asylum seekers within the European Union: Slovak Republic and Hungary v. Council’ (2018) 55 CML Rev 1457, and H Labayle, ‘Le principe de solidarité en matière d’asile devant la Cour de justice, de la coupe aux lèvres’ (2017) La Semaine Juridique – édition générale 2113. 13 Slovakia and Hungary v Council, C‑643/15 and C‑647/15, n 7 above, paras 62 and 65.

6  Koen Lenaerts to accompanying measures taken in support of a legislative act adopted on the basis of Article  78(2) TFEU.14 Second, Article  78(2) TFEU and Article  78(3) TFEU pursue different objectives, each having its own conditions of application.15 Third, a restrictive interpretation of the concept of ‘provisional measures’ would undermine the effectiveness of Article 78(3) TFEU as that concept must be sufficiently broad in scope so as to allow the Council to respond effectively and swiftly to a sudden inflow of third-country nationals. Fourth and last, there is no risk of circumventing Article 78(2) TFEU as both the temporal and material scope of the provisional measures that may be adopted under Article 78(3) TFEU must be circumscribed: those measures may not replace or amend legislative provisions either permanently or generally. No such risk existed in respect of the contested decision, since it only applied for a two-year period and in respect of 120,000 nationals of certain third countries who met a series of specific conditions.16 In contrast to ex-­Article  64(2) EC, which previously limited the validity of provisional measures to six months, Article 78(3) TFEU is silent in that regard, affording the Council broad discretion to determine the temporal scope of provisional measures.17 Since it was reasonable to take the view that the relocation of a large number of persons required time for preparation and implementation, the Court found that the Council did not manifestly exceed the bounds of its discretion.18 The Council was also right to qualify as ‘sudden’ a sharp increase in the inflow of third-country nationals heading for Greece and Italy over a short period of time, as occurred in the summer of 2015, despite the fact that statistics showed that in 2013 and 2014 the number of third-country nationals heading for these Member States had already seen a steady increase.19 Although Article 78(3) TFEU requires that there must be a sufficiently close link between the emergency situation and the sudden inflow of third-country nationals, the Court rejected the submission that any such link could be called into question because of structural weaknesses in the Greek and Italian asylum systems. It pointed out that the inflow of 2015 was on such a scale that it would have disrupted any asylum system, even one without those weaknesses.20 Article 78(3) TFEU was therefore the proper legal basis for the contested decision.

ii.  The Principle of Proportionality Slovakia called into question the appropriateness of and necessity for the contested decision. It argued that the mandatory relocation scheme was not capable of redressing the structural deficiencies in the Greek and Italian asylum systems. It argued that the small number of relocations that had actually been carried out showed that the contested decision had been unsuitable for attaining the intended objective from the start. Moreover, in its view, the objective pursued by the contested decision could have been achieved just as effectively



14 ibid,

para 71. para 73. 16 ibid, paras 77 and 78. 17 ibid, para. 92 and 93. 18 ibid, paras 96 and 97. 19 ibid, paras 122 to 124. 20 ibid, paras 127 and 128. 15 ibid,

The Court of Justice of the European Union and the Refugee Crisis  7 by other measures that were less intrusive for national sovereignty, such as the system of temporary protection set out in Directive 2001/55.21 For its part, Hungary argued that, although it was no longer included among the Member States benefiting from the mandatory relocation scheme, it should not be subject to compulsory relocation quotas, given that its asylum system continued to face an emergency situation after the contested decision was adopted. In addition, intervening in support of Hungary, Poland argued that those compulsory quotas had a disproportionate effect in a number of Member States that had to make far greater efforts and bear far heavier burdens than other host Member States. That was the case of Member States, such as Poland, which were ‘virtually ethnically homogenous’ and whose population was different, from a cultural and linguistic point of view, from the migrants to be relocated on their territory. Regarding the suitability of the contested decision, the Court of Justice noted, first, that any asylum system would have been seriously disrupted by the unprecedented influx of migrants that occurred in Greece and Italy in 2015.22 Second, that scheme formed part of a broad array of measures – such as the provision of operational and financial support – that aimed not only to relieve pressure on the Greek and Italian asylum systems but also to improve the capacity, quality and effectiveness of those asylum systems.23 Third and last, judicial review of the contested decision could not amount to a retrospective assessment of its effectiveness. In other words, the Court would be overstepping the limits of its jurisdiction if it were to assess the legality of the contested decision in the light of current events. On the contrary, judicial review must be limited to examining whether the prospective analysis carried out by the Council was manifestly incorrect in the light of the information available at the time when the contested decision was adopted. In that regard, the Court observed that the analysis of the Council relied on a detailed examination of the statistical data available at that time.24 In addition, the small number of relocations so far carried out pursuant to the contested decision could be explained by a series of factors that the Council could not have foreseen at the time when the decision was adopted, including, in particular, the lack of cooperation on the part of certain Member States.25 As to the necessity of the contested decision, the Court of Justice noted that existing EU measures did not adequately meet the need to relieve the pressure on the Greek and Italian asylum systems caused by the massive influx of migrants that had already taken place.26 The EU system of temporary protection could not resolve that influx either, since that system provides that persons eligible under it are entitled to protection in the Member

21 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12. 22 Slovakia and Hungary v Council, C‑643/15 and C‑647/15, n 7 above, para 214. 23 ibid, para 215. 24 ibid, paras 221 to 223. 25 ibid, para 224. 26 ibid, paras 239 to 241. That new emergency was the result of a shift in the migration flow from the central to the eastern Mediterranean and towards the western Balkans route. This meant, in practical terms, that the Italian migration system was under less pressure, whilst new pressure had been added up to the already collapsed Greek asylum system. That explains why at first, the Council decided that of 40,000 persons, 60% were to be relocated from Italy and 40% from Greece, whilst subsequently, it took the view that of 120,000 persons, 13% should be relocated from Italy and 42% from Greece.

8  Koen Lenaerts State where they are located.27 In any event, Slovakia had produced no concrete evidence showing that the alternative measures it put forward – such as increasing the resources, in particular of a technical and financial nature, made available to Greece and Italy – would clearly involve lower costs than a temporary relocation mechanism.28 Furthermore, the adoption of the contested decision entailed a burden that had, as a rule, to be divided between all the Member States that do not benefit from the mandatory relocation scheme. Accordingly, it was not contrary to the principle of proportionality for the Council to consider that Hungary had to be allocated relocation quotas in the same way as all the other Member States that were not beneficiaries of relocation. That finding did no more than reflect the principle of solidarity and fair sharing of responsibility between the Member States provided for in Article 80 TFEU.29 The allocation of quotas was made on the basis of a distribution key that took into account the economic weight of each of the Member States concerned and the migratory pressure on their asylum systems. However, contrary to the observations submitted by Poland, that distribution key could not take into account the cultural and linguistic ties between each applicant for international protection and the Member State of relocation. This was because requiring such ties would not only call into question the principle of solidarity and fair sharing of responsibility between the Member States, but would also totally disregard the prohibition against discrimination set out in Article 21 of the Charter.30

iii.  Emergency Solidarity Slovakia and Hungary v Council provided the Court of Justice with an opportunity to clarify the powers that the Council enjoys when confronted with emergency situations brought about by a sudden inflow of third-country nationals. First, the Court had to draw the dividing line between legislative and executive powers at EU level. As happens in the Member States, the executive must, in times of emergency, be allowed to act swiftly and effectively in order to deal with a crisis, since legislative decision-making tends to be more cumbersome and time-consuming.31 This is so even where an emergency situation requires the adoption of measures that derogate – temporarily and specifically – from legislative acts. Of course, the exercise of executive powers must not give rise to abuse as this would encroach upon the prerogatives of the legislator and thus undermine the principle of representative democracy on which the EU is founded. That is why the Court stressed the importance of subjecting the adoption of provisional measures to temporal and material limitations that circumscribe the scope of those measures to ‘a specific crisis’.32 Second, the Court had to define the level of judicial scrutiny applicable to the contested decision. To that end, it interpreted Article  78(3) TFEU as allowing the Council a broad degree of discretion in

27 ibid, para 256. 28 ibid, para 260. 29 ibid, paras 291 and 292. See, in this regard, A Caiola, ‘Une base juridique pour la solidarité : l’article  80, seconde phrase, TFUE’ (2018) Cahiers de droit européen 437. 30 Slovakia and Hungary v Council, C‑643/15 and C‑647/15, above n 7, paras 304 and 305. 31 B De Witte and E Tsourdi, above n 12, at 1481. See also J-Y Carlier and L Leboeuf, ‘Chroniques: Droit européen des migrations’ (2018) Journal de droit européen 95, at 105. 32 Slovakia and Hungary v Council, C‑643/15 and C‑647/15, n 7 above, para 78.

The Court of Justice of the European Union and the Refugee Crisis  9 determining the period during which provisional measures must remain in force as well as in deciding what is to be understood as a ‘sudden inflow’. Most importantly, the Court applied a ‘soft’ version of the proportionality test when examining the suitability and necessity of the mandatory relocation scheme. This is a positive development that prevents the Court from second-guessing the political choices made by the Council. Last, but not least, the mandatory relocation scheme is founded on the principle of solidarity and fair sharing of responsibility. This means, in essence, that where the asylum systems of certain Member States are facing serious difficulties, the other Member States have a duty to help them. The principle of solidarity and fair sharing of responsibility prevails over the views that a Member State may have on the question whether refugees should be welcomed or walls should be built. Whether enthusiastically or reluctantly, a Member State that is not itself a beneficiary of provisional measures of this sort must, in principle, fulfil its obligations under the mandatory relocation scheme by accepting the persons allocated to it.33

B.  The EU-Turkey Statement of 18 March 2016 In NF, NG and NM v European Council, three asylum-seekers each brought an action for annulment of the EU-Turkey statement of 18 March 2018 before the General Court. They argued, inter alia, that resettlements based on that statement ran the risk of asylum-seekers being sent back to their country of origin where they would face persecution, which in turn would be incompatible with the non-refoulement principle. However, before the General Court could examine the merits of those actions, the European Council raised a plea of inadmissibility, arguing that that statement was not attributable to it, nor indeed to any of the entities listed in Article 263 TFEU, but rather to the Heads of State or Government of the Member States. Thus, the European Council took the view that the General Court lacked jurisdiction to rule on those actions. The applicants urged the General Court to reject that plea, arguing that the EU-Turkey statement, as published by means of Press Release No 144/16, contained the term ‘EU’ and the expression ‘Members of the European Council’. More specifically, that press release stated that the EU-Turkey statement was the result of a meeting between the ‘Members of the European Council’ and their ‘Turkish counterpart’ and that it was ‘the EU and Turkey’ which had agreed on additional action points set out in that statement. The General Court, however, held that the term ‘EU’ and the expression ‘Members of the European Council’, as published in the press release, were ambivalent and not, therefore, conclusive.34 It went on to examine a series of official preparatory documents of the meeting of 18 March 2016 at which the EU-Turkey statement was made. It examined the invitation to that meeting sent by the President of the European Council to the Member States, a note sent by the General Secretariat of the Council to the Mission of Turkey to the EU inviting the

33 The Commission has brought infringement proceedings against Poland, Hungary and the Czech Republic for having failed to fulfil their obligations under the contested decision. Cases C-715/17, C-718/17 and C-719/17 are currently pending before the Court of Justice. 34 NF v European Council, T‑192/16, n 7 above, para 62; NG v European Council, T‑193/16, n 7 above, para 60, and NM v European Council, T‑257/16, n 7 above, para 60.

10  Koen Lenaerts Turkish Prime Minister to that meeting, and a note drafted by the Directorate for Protocol of the Council detailing the programme of the meeting. All of those documents indicated that the ‘Heads of State or Government’ were to take part in the meeting of 18 March 2016. Accordingly, the General Court ruled that the terms ‘EU’ and ‘the Members of the E ­ uropean Council’ were to be interpreted as references to the Heads of State or Government of the Member States of the European Union.35 As a result, the General Court dismissed the actions on the ground that it lacked jurisdiction to hear and to determine them.36 Some scholars have criticised the orders of the General Court, arguing that the rationale followed by that court was too formalistic or too cautious,37 and that those orders are difficult to reconcile with the ERTA case law.38 In their view, prior to determining whether the representatives of the Member States are acting in their capacity as members of the Council or as members of their respective governments, the question of which body has competence to conclude an international agreement should first be resolved. However, the General Court failed to do so. Be that as it may, it is worth noting that the Court of Justice has not yet had the opportunity to rule on this matter. Although each of the three applicants brought an appeal against the corresponding order of the General Court, those appeals were drafted in an incoherent fashion and contained assertions and allegations that could not be raised in appeal proceedings. As a result, they were dismissed as manifestly inadmissible.39 That said, nothing would prevent a national court called upon to apply aspects of the EU-Turkey statement from referring preliminary questions to the Court of Justice.40

II.  Interpreting EU Asylum Law in Times of Crisis As mentioned above, regarding asylum-seekers who did not fall within the scope of application of the EU and its Member States’ response to the crisis, existing EU legislation on asylum continued to apply with its full effect.

A.  Article 4 of the Charter as a ‘Safety Valve’ Mechanism Prior to the crisis, the seminal NS and Others judgment had already made clear that a Member State cannot be the ‘primary responsible’ state, within the meaning of the 35 NF v European Council, T‑192/16, n 7 above, para 67; NG v European Council, T‑193/16, n 7 above, para 65, and NM v European Council, T‑257/16, n 7 above, para 65. 36 NF v European Council, T‑192/16, n 7 above, para 72; NG v European Council, T‑193/16, n 7 above, para 70, and NM v European Council, T‑257/16, n 7 above, para 70. 37 See, eg, N Idriz, ‘The EU-Turkey Statement or the “Refugee Deal”: The Extra-Legal Deal of Extraordinary Times?’(2017) Asser Institute, Centre for International & European Law, Research Paper Series 2017-06, and P Koutrakos, ‘Editorial: A Realist Court?’ (2017) 42 EL Rev 311, at 312. 38 E Cannizzaro, ‘Denialism as the Supreme Expression of Realism – A Quick Comment on NF v European Council’ (2017) 2 European Papers 251. In that regard, the author refers to the judgment of 30 June 1993 in Joined Cases C‑181/91 and C‑248/91 Parliament v Council and Commission EU:C:1993:271. 39 Order of 12 September 2018 (not published) in Joined Cases C‑208/17 P to C‑210/17 P NF and Others v European Council EU:C:2018:705. 40 J-Y Carlier and L Leboeuf, n 31 above, at 97.

The Court of Justice of the European Union and the Refugee Crisis  11 Dublin II Regulation,41 for examining asylum applications where there are systemic deficiencies in its asylum system and reception conditions that would subject asylum-seekers to inhuman or degrading treatment prohibited under Article 4 of the Charter.42 Article 3(2) of the Dublin III Regulation codifies that case law. That case law operates as a ‘safety valve’ mechanism: a Member State whose asylum system suffers from systemic deficiencies is ‘temporarily out’ of the Dublin system of mutual trust, given that asylum-seekers cannot be transferred to its territory. Most importantly, this ensures compliance with fundamental rights, whilst preventing a further deterioration of national asylum systems that suffer from those deficiencies. As a result, during the refugee crisis, some national courts considered that the Greek and Italian asylum systems suffered from those systemic deficiencies and refused to transfer asylum seekers to those Member States, applying the other criteria listed in the Dublin III Regulation.43 Moreover, the refugee crisis gave the opportunity to the Court of Justice to develop further that case law in CK. That case concerned the transfer of Mrs CK, a Syrian national, her partner and her baby from Slovenia to Croatia. In application of the Dublin  III Regulation and having obtained assurances from the Croatian authorities that Mrs CK and her family would be properly accommodated and would have access to healthcare, the Slovenian authorities decided to proceed with their transfer. However, the applicants challenged that decision on the ground that, as Mrs CK was suffering from serious mental illness and was even a suicide risk, the transfer could adversely affect her state of health and that of her baby. Thus, this case did not concern the reception and living conditions for asylumseekers in the Member State responsible under the Dublin III Regulation (ie Croatia), which were adequate, but the question whether, in the light of the personal situation of Mrs CK and her baby, the transfer should be suspended in so far as it would give rise to inhuman or ­degrading treatment. Drawing on the absolute nature of the prohibition laid down in Article 4 of the ­Charter, the Court held that that provision precludes the transfer of an asylum seeker where such transfer would give rise to inhuman or degrading treatment. Most importantly for present purposes, the Court pointed out that Article 3(2) of the Dublin III Regulation – the provision that codifies the NS judgment – is not to be interpreted as precluding the requesting Member State from suspending the transfer of an asylum seeker in situations where there is a real and proven risk that the prohibition set out in Article 4 of the Charter will be breached, despite the fact that there are no systemic deficiencies in the Member State responsible.44 That interpretation, the Court reasoned, is compatible with the principle of mutual trust

41 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, [2003] OJ L50/1, repealed by the Dublin III Regulation. 42 Judgment of 21 December 2011 in Joined Cases C‑411/10 and C‑493/10 NS and Others EU:C:2011:865, para 94. 43 For further developments regarding the notion of ‘systemic deficiencies’, see Opinion of AG Wathelet in Case C‑163/17 Jawo EU:C:2018:613. That case is currently pending. 44 CK and Others, C‑578/16 PPU, n 9 above, paras 92 and 93. V Mitsilegas, ‘Humanizing solidarity in European refugee law: The promise of mutual recognition’ (2017) 27 MJ 721, at 732, and Š Imamovic and E Muir, ‘The Dublin  III System: More Derogations to the Duty to Transfer Individual Asylum Seekers?’ (2017) 2 European Papers 719 (who welcome that judgment). On the principle of mutual trust in the ASFJ, see generally K Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’ (2017) 54 CML Rev 805.

12  Koen Lenaerts since, far from calling into question the presumption of compliance with fundamental rights in every Member State, it guarantees that the requesting Member State will take into consideration exceptional situations such as that of Mrs CK.45

B.  Access to Justice and Solidarity During the crisis, some Member States witnessed how a wave of asylum-seekers travelled from Southern to Central and Northern Europe. Some of those with external borders built fences in order to shift migration pressure onto neighbouring Member States. Other Member States, perhaps aware of the fact that asylum-seekers were ‘just passing through’, adopted a ‘wave-through’ policy: they let asylum-seekers reach the Member State where they wished to go, which was generally Germany.46 As a result, Member States in central and northern Europe were overwhelmed with an extraordinary number of asylum applications. For example, in 2015, Germany registered 35% (441,800 applications) of all first-time asylum applications made in the EU (1.2 million applications). It was followed by Hungary with 14% (174,400 applications), Sweden with 12% (156,100 applications) and Austria with 7% (85,500 applications).47 In 2016, Germany again registered the highest number with 60% (722,300 applications) of all first-time asylum applications made in the EU (1.2 million applications). It was followed by Italy with 10% (121,200 applications), France with 6% (76,000 applications), and Greece with 4% (49,900 applications).48 Logically, in the absence of additional resources, this extraordinary number of asylum applications made compliance with the deadlines set out in the Dublin Regulation difficult to achieve. Accordingly, the Court of Justice was asked to determine, first, whether asylum seekers could challenge transfer decisions that misapplied the criteria set out in the Dublin III Regulation and/or that failed to comply with the relevant time limits. Those issues posed, in essence, the question whether the crisis could render access to justice more difficult for refugees. The Court replied in the negative, sending the clear message that justice neither bends nor breaks in times of crisis. Second, the Court was also called upon to determine whether the ‘wave-through’ policy had any bearing on the interpretation of the ‘irregular crossing’ criterion set out in the Dublin III Regulation. This was an important question because it determined whether Member States that adopted this policy could forgo their responsibilities under the CEAS to the detriment of other Member States.

i.  Access to Justice It is worth recalling that, under the Dublin  II Regulation, the possibilities of challenging the misapplication of the criteria laid down therein were very limited. In Abdullahi,49 45 ibid, para 95. 46 D Thym, n 10 above, at 553. 47 See Eurostat, news release 44/2016, 4 March 2016, ‘Asylum in the EU: Member States Record number of over 1.2 million first time asylum seekers registered in 2015’, available at: ec.europa.eu/eurostat/documents/ 2995521/7203832/3-04032016-AP-EN.pdf/790eba01-381c-4163-bcd2-a54959b99ed6. 48 See Eurostat, news release 46/2017, 16 March 2017, ‘Asylum in the EU: Member States 1.2 million first time asylum seekers registered in 2016’, available at: //ec.europa.eu/eurostat/documents/2995521/7921609/316032017-BP-EN.pdf/e5fa98bb-5d9d-4297-9168-d07c67d1c9e1. 49 Case C‑394/12 Abdullahi EU:C:2013:813.

The Court of Justice of the European Union and the Refugee Crisis  13 the Court of Justice ruled that an asylum-seeker was only entitled to challenge a transfer decision by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for international protection in the Member State responsible, which provide substantial grounds for believing that the asylum-seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.50 Subsequently, in Ghezelbash and Karim,51 the question that arose was whether Abdullahi remained good law under the Dublin III Regulation. After examining the general thrust of the developments in EU law that had taken place as a result of the adoption of the Dublin III Regulation, the Court replied in the negative. One of the major changes brought about by the Dublin III Regulation was to enhance the involvement of applicants for international protection in the process of determining the Member State responsible. In particular, that regulation broadens the scope of the remedies available against a transfer decision. First, it obliges the Member States to inform applicants for international protection of the criteria for determining responsibility. Second, they must provide applicants for international protection with an opportunity to submit information relevant to the correct interpretation and application of those criteria. Finally, the Regulation confers on applicants for international protection the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process. In Ghezelbash, this meant that the asylum-seeker was entitled to bring an appeal against a decision adopted by the Dutch authorities ordering his transfer to France on the ground that the criterion relating to the grant of a visa set out in Article 12 of the Regulation had been misapplied. Similarly, in Karim, this meant that the asylum-seeker had the right to challenge a decision adopted by the Swedish authorities ordering his transfer to Slovenia, on the ground that, since he had left the territory of the Member States for more than three months before making a new application, Slovenia’s obligation to take charge as the Member State in which the first asylum application was made, had lapsed. The Ghezelbash and Karim judgments confirm that the Court of Justice is respectful of the changes made by the EU legislator to the Dublin system and that it will not hesitate to depart from its previous case law so as to interpret the law in the light of those changes, provided that those changes comply with primary EU law and notably with the Charter.52 Subsequently, in AS, the Court of Justice extended the Ghezelbash and Karim line of case law, by holding that applicants for international protection can also challenge the misapplication of the ‘irregular crossing’ criterion laid down in Article 13(1) of the Dublin III Regulation. In so doing, the Court held that the rationale underpinning the judgments in Ghezelbash and Karim does not distinguish between the various criteria laid down in Chapter III of that Regulation. That rationale applied mutatis mutandis to the case at hand. Accordingly, as EU law currently stands, applicants for international protection may challenge a transfer decision that, in their view, misapplies any of the criteria laid down in Chapter III of that Regulation.53 In addition to the criteria laid down in its Chapter III, the Dublin  III Regulation contains rules that provide for the transfer of responsibility for examining applications

50 ibid,

para 60. See also Case C-4/11 Puid EU:C:2013:740, para 30. C‑63/15 Ghezelbash EU:C:2016:409, paras 30 to 61, and Case C‑155/15 Karim EU:C:2016:410, para 22. 52 M Den Heijer, ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’ (2017) 54 CML Rev 859, at 862–65. 53 AS, C‑490/16, above n 8, paras 27 to 35. 51 Case

14  Koen Lenaerts where national authorities fail to comply with the time limits set out in that Regulation. For example, where a person makes an application for international protection in the Member State where he or she is present and that Member State considers that another Member State is responsible for examining that application, the former is to request the latter to take charge. The request to take charge is to take place within three months of the date on which the application was made. That time limit is reduced to two months in case of a Eurodac hit.54 A failure to comply with that time limit transfers the responsibility to the Member State where the application is made.55 Of course, in the context of the refugee crisis where Member States such as Germany and Austria received tens of thousands of applications for asylum in a relatively short period of time, the importance of meeting the relevant time limits is paramount: a slow reaction of the Member State where the application is lodged may entail taking responsibility for examining a significant number of applications for which that Member State would not have been responsible, had its authorities acted on time. In Mengesteab, two fundamental questions arose. First, whether applicants for international protection could challenge a transfer decision on the ground that national authorities had failed to make the request to take charge on time. The UK and the Commission urged the Court of Justice to limit the Ghezelbash and Karim line of case law, by drawing a distinction between the procedural and substantive rules contained in the Dublin III Regulation. Since the provision laying down the time limits to make the request to take charge was not framed in terms of conferring individual rights, the UK and the Commission argued that an applicant for international protection should not be entitled to challenge a transfer decision based on a request to take charge on the ground that the latter failed to comply with those time limits. However, the Court took a different view. Recalling Ghezelbash and Karim, it held that, since the Dublin III Regulation seeks to provide applicants for international protection with effective and complete judicial protection, those applicants may challenge transfer decisions on the ground that those decisions have failed to respect the procedural guarantees laid down in that Regulation that include, inter alia, the observance of a series of specific time limits.56 Accordingly, just like a transfer decision that misapplies the criteria laid down in Chapter III of the Dublin III Regulation, a transfer decision that is based on a request to take charge that fails to observe the relevant time limits, is not valid. Moreover, the distinction put forward by the UK and the Commission found no support in the Dublin III Regulation. Most importantly, that distinction would run counter to the objective of strengthening the protection of applicants for international protection, since the exclusion of procedural safeguards from the scope of judicial review of transfer decisions would undoubtedly weaken that protection.57 Second, the referring court asked whether the fact that another Member State had agreed to take charge had any ‘validating’ effect on a request to take charge that was not

54 Eurodac (European Asylum Dactyloscopy Database) is a database used to determine which EU Member State is responsible for the processing of an asylum application (on the basis of the asylum-seeker’s fingerprints, for example). 55 See Art 21(1) of the Dublin III Regulation. 56 Mengesteab, C‑670/16, n 9 above, paras 48 to 50. 57 ibid, paras 57 and 58.

The Court of Justice of the European Union and the Refugee Crisis  15 made on time. The Court of Justice replied in the negative. Indeed, failure to comply with the ­mandatory time limit for the request to take charge entails the automatic transfer of responsibility to the Member State where the application was lodged. Subsequently, in Hasan and X, the Court of Justice followed the same approach where a take back request is not made within the mandatory time limits prescribed by the Dublin III Regulation.58 Similarly, in X and X, the Court held that where the requested Member State fails to reply to a take charge or take back request within the mandatory time limits set out in the Regulation,59 such failure is tantamount to accepting the request.60 Moreover, a purely formal reply to the requesting Member State cannot operate as a means of circumventing those mandatory time limits, since a negative reply ‘must state full and detailed reasons for the refusal’.61 In addition to the time limits that apply to the request to take charge, Article 29 of the Dublin III Regulation also lays down a time limit of six months to adopt and implement the transfer decision. That time limit starts to run after 1) the acceptance by another Member State of the request to take charge or to take back the applicant or 2) the final decision on an appeal or review against the transfer decision where such an appeal or review has a suspensive effect. In Shiri, the Court of Justice examined the consequences that flow from a failure of the requesting Member State to transfer the applicant within the six-month time limit. Drawing on its findings in Mengesteab, the Court ruled that such a failure entails the automatic transfer of responsibility to the requesting Member State. This is so regardless of any reaction by the Member State responsible.62 Furthermore, just as it did in Mengesteab, the Court held that an applicant for international protection may challenge a transfer decision on the ground that on the day when such a decision was adopted, the six-month time limit provided for by the Dublin III Regulation had already elapsed.63 However, unlike the situation at issue in Mengesteab, the Court was confronted with an additional question in Shiri, ie what happens where the transfer decision is adopted in good time but the implementation of that decision is carried out after the expiry of the six-month time limit? With regard to such situations, the Court ruled that, in light of Article 47 of the Charter and of the objective of determining rapidly the Member State responsible, it is for the requesting Member State to provide the applicant for international protection with an effective and rapid remedy that would enable him or her to challenge the transfer.64 In AS, the Court of Justice held that, where an appeal with suspensive effect has been lodged against a transfer decision, the six-month time limit to carry out the transfer does not start to run until a final decision on that appeal is reached. Needless to say, the same applies when the court hearing that appeal has decided to seek a preliminary ruling from the Court.65

58 See judgments of 25 January 2018 in Case C‑360/16 Hasan EU:C:2018:35, para 77 and of 5 July 2018 in Case C‑213/17 X EU:C:2018:538, para 35. 59 See Arts 22(7) and 25(2) of the Dublin III Regulation. 60 X and X, C-47/17 and C-48/17, n 8 above, paras 64 and 66. 61 ibid, para 67. 62 Shiri, C‑201/16, EU:C:2017:805, n 8 above, para 34. 63 ibid, paras 40 and 41. 64 ibid, paras 43 and 44. 65 AS, C‑490/16, n 8 above, para 60.

16  Koen Lenaerts Finally, in the light of Article 5(2) of the Commission Regulation laying down detailed rules for the application of the Dublin  II Regulation (the ‘Implementing Regulation’),66 the requesting Member State may ask the requested Member State to reconsider its negative reply to a take charge or take back request. In X and X, the Court of Justice held that Article  5(2) had to be interpreted so as to be compatible with the Dublin  III Regulation and the objectives pursued by it. Therefore, the Implementing Regulation could not alter the consequences that flow from the fact that the requested Member State has complied with the relevant time limits contained in the Dublin III Regulation. In particular, a failure to reply to a re-examination request on time does not entail a transfer of responsibility for examining applications for international protection.67 Despite the fact that the questions referred in Mengesteab, Shiri, AS and X and X are highly technical, one may draw three direct ‘constitutional’ implications from those judgments that relate to the relationship between the Court of Justice and the EU legislator, as well as to the role that the Court is called upon to play in the refugee crisis. First, the Court of Justice strives to interpret the Dublin III Regulation in keeping with the objectives pursued by the EU legislator that sought to provide applicants for international protection with effective and complete judicial protection. This meant that compliance with the set of mandatory time limits prescribed by the Dublin III Regulation is, in effect, the same thing as respecting the procedural guarantees conferred upon the applicants for international protection. Second, those judgments pay due attention to the fact that when adopting the Dublin III Regulation, the EU legislator sought a policy shift that would enhance the ‘fundamental rights’ dimension of EU asylum law. Third and last, the fact that those three cases came to the Court of Justice as a result of a massive inflow of applicants for international protection had no bearing on the rationale underpinning the Court’s approach to them. As stated in the order granting the application of the expedited procedure in Mengesteab, the Court was aware of the fact that, in the context of the refugee crisis, its interpretation of the Dublin III Regulation would have an enormous impact on the Austrian asylum system, given that thousands of applicants for international protection were in a situation similar to that of the applicants in the main proceedings. That extreme circumstance justified the application of the expedited procedure in order to provide the referring court with an answer to novel and complex issues as soon as possible.68 However, that extreme circumstance did not authorise the Court to ‘bend the rules’ so as to ease the pressure suffered by the asylum system of the requesting Member States to the detriment of the asylum system of the requested Member States, or vice versa. The refugee crisis was not used by the Court as a justification to depart from the rules laid down in the Dublin III Regulation, in particular by lowering the effective judicial protection of applicants for international protection.69 66 Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national [2003] OJ L222/3, as amended by Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 [2014] OJ L39/1. 67 X and X, C-47/17 and C-48/17, n 8 above, paras 77 and 78. 68 See eg order of the President of the Court of 15 February 2017 (not published) in Case C‑670/16 Mengesteab EU:C:2017:120. 69 D Thym, n 10 above, at 567.

The Court of Justice of the European Union and the Refugee Crisis  17

ii.  Principle of Solidarity and Fair Sharing of Responsibility In 2015 and 2016 there was a massive inflow of applicants for international protection who sought to make their way towards Western Europe via the so-called ‘western Balkans route’. This was indeed what the applicants in Jafari did.70 In 2015, the Jafari sisters left ­Afghanistan with their children, travelled through Iran, Turkey, Greece, FYROM and Serbia. In 2016, they crossed the border between Serbia and Croatia, ie an external border of the EU. The Croatian authorities organised transport for them by bus to the Slovenian border. In S­ lovenia, they were given ‘police documents’ stating that their final destination was, for one of them, Germany and, for the other, Austria. Upon arrival in Austria, the Jafari sisters lodged applications, on their own behalf and on behalf of their children, for international protection in that Member State. In application of the criterion of ‘irregular crossing’ set out in the Dublin III Regulation, the Austrian authorities took the view that the Member State responsible for examining their applications was Croatia, since the Jafari sisters and their children had crossed the border between Serbia and Croatia irregularly. Those authorities also noted that, in any event, Greece could not be the Member State responsible as that Member State suffered from systemic deficiencies in its asylum procedure. Accordingly, the Austrian authorities ordered the transfer of the Jafari sisters and their children to Croatia. The Jafari sisters challenged that decision, arguing that they had not crossed that border irregularly as their presence had been tolerated by the Croatian authorities. It is worth recalling that at that time, the Croatian authorities were confronted with the arrival of an unusually large number of third-country nationals, seeking transit through that Member State in order to lodge an application for international protection in Austria or Germany, who did not fulfil the conditions for legal entry. After finding that no ‘visa’ within the meaning of the Dublin III Regulation had been issued to the applicants in the main proceedings, the Court of Justice went on to examine the concept of ‘irregular crossing of an external border’. It observed that the Dublin III Regulation did not define that concept,71 nor could its meaning be inferred from other EU acts adopted in the fields of border control and immigration.72 Accordingly, in the light of the wording, scheme and purpose of the relevant provisions of the Dublin III Regulation, the Court found that that concept had to be interpreted as ‘the crossing of a border without fulfilling the conditions imposed by the legislation applicable in the Member State in question’.73 Although Croatia is not yet part of the Schengen Area, it is, nevertheless, bound to apply the Schengen Borders Code when determining the conditions for legal entry.74 For the Jafari sisters who failed to meet the conditions laid down in that Code, this meant that they had crossed the Serbian-Croatian border irregularly. Most importantly for present purposes, whilst the Schengen Borders Code allows the Member States to rely on humanitarian grounds in order to derogate from the entry



70 Case

C‑646/16 Jafari, n 9 above. para 61. 72 ibid, para 72. 73 ibid, para 74. 74 ibid, para 76. 71 ibid,

18  Koen Lenaerts c­ onditions generally imposed on third-country nationals, that derogation only applies in respect of the territory of the Member State concerned, ie Croatia, but not to the territory of the other Member States.75 Otherwise, if a Member State had the possibility of passing on the responsibility of examining applications for international protection to other Member States, the spirit of solidarity and fair sharing of responsibility that underpins the Dublin system would be called into question. According to that spirit, each Member State is answerable to all the other Member States for its actions concerning the entry and residence of third-country nationals and must bear the consequences thereof.76 Moreover, contrary to the views of Advocate General Sharpston,77 the Court of Justice found that in adopting the Dublin III Regulation, the EU legislator had indeed taken into account the possible arrival of a sudden inflow of applicants for international protection. It ‘provided the Member States with means intended to be capable of responding to that situation appropriately, without, however, providing for the application, in that case, of a specific body of rules for determining the Member State responsible’.78 Those means were the early warning mechanism, Directive 2001/55, the adoption of provisional measures on the basis of Article 78(3) TFEU, and the unilateral or bilateral application of the discretionary clause enshrined in Article 17(1) of the Dublin III Regulation. Thus, the ruling of the Court of Justice in Jafari demonstrates that, in the event of a refugee crisis, it is not for the Court to ‘bend the existing rules’. ‘Emergency interpretation’ is inconsistent with the principle of separation of powers, which is an essential component of the rule of law within the EU. On the contrary, it is for the EU political institutions to change the existing rules if those institutions find them insufficient to cope with emergency situations.

III.  Concluding Remarks Be it in times of crisis or in times of relative calm, the role of the Court of Justice is to uphold the rule of law within the EU. That is achieved by ensuring that the policy choices made by the EU political institutions are consistent with the EU Treaties and the Charter, and by refusing to interpret EU legislation differently even where extra-legal considerations carry enormous weight. Whereas it may be appropriate for the EU political institutions to pass ‘emergency legislation’, it is definitely not for the EU judiciary to embrace ‘emergency interpretation’. Any change felt to be needed in the balance of responsibilities between the Member States as to the control of the external borders, and the operation of their respective asylum systems must be decided by the EU legislator, operating in accordance with the principle of representative democracy. That said, that balance is circumscribed by the Charter and the principle of solidarity and fair sharing of responsibility. 75 ibid, para 80. 76 ibid, paras 85 and 88. 77 cf Opinion of AG Sharpston in Cases C-490/16 and C-646/16 AS and Jafari EU:C:2017:443, paras 150–90 (who argued that the Dublin III Regulation was only meant to apply under ‘normal circumstances’ and advocated the non-application of the ‘irregular crossing’ criterion during the crisis). 78 Case C‑646/16 Jafari, n 8 above, para 93.

The Court of Justice of the European Union and the Refugee Crisis  19 During the refugee crisis, this meant that the sudden and massive inflow of third-­country nationals that reached the European continent in 2015 and 2016 was not to be seen as a ‘faceless invasion’ but as a collection of individual human beings who had to be treated with dignity and respect. The refugee crisis also showed that the EU is, first and foremost, a ‘Union of solidarity based on the rule of law’ where Member States may not forgo their obligations under EU law. Member States with an external border may not pass on their obligations to examine applications for international protection to other Member States by adopting a ‘wave-through’ policy. Nor may Member States that are not the beneficiaries of provisional measures refuse to help those whose asylum systems are in serious difficulties. Member States must work together and help each other by upholding the rule of law within the EU, even if that entails taking the rough with the smooth. ­Paraphrasing the famous words of the late US Supreme Court Justice Benjamin N Cardozo, if one lesson is to be drawn from the refugee crisis, it is that the entire European enterprise is ‘framed upon the theory that the peoples of the several [European Member States] must sink or swim together, and that in the long run prosperity and salvation are in union and not division’.79



79 Baldwin

v GAF Seelig, Inc, 294 US 511, 523 (1935).

20

2 How Trustworthy is Mutual Trust? Opinion 2/13 Revisited CHRISTIAAN TIMMERMANS

I. Introduction In European law literature mutual trust or the principle of mutual trust has become a topic of great prominence in a short period of time.1 Some authors have even elevated it to a constitutional principle of European Union (EU) law. In the recent Liber Amicorum dedicated to another eminent former colleague, Antonio Tizzano, one finds various contributions on this topic.2 This has much to do with the innate tension between achieving within the Area of Freedom, Security and Justice (AFSJ) more simplified mechanisms of cross-border judicial cooperation in the areas of criminal law, asylum law, family law etc. on the one hand and the protection of fundamental rights on the other. Opinion 2/13 on the draft accession agreement of the EU to the European Convention on Human Rights (ECHR or Convention) has further prompted attention for this principle as it inspired one of the main objections of the Court of Justice (ECJ or Court) against the draft agreement.3 It is now almost five years since the Court delivered its Opinion. Since then, the case law on the principle of mutual trust has further developed, and so has academic discussion.

1 See R Barents, ‘De Europese ruimte: contouren van een nieuw rechtsbegrip Over de betekenis van de ­grondrechten in het Unierecht’ (2018) SEW Tijdschrift voor Europees en economisch recht 248, 257, 258; L Bay Larsen, ‘Some reflections on Mutual Recognition in the Area of Freedom, Security and Justice’ in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System. Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012) 139; T Blanchet, ‘Aie confiance! – La confiance mutuelle peut-elle se décréter?’ in J C ­ zuczai and F Naert (eds), The EU as a Global Actor bridging Legal Theory and Practice. Liber Amicorum in Honour of Ricardo Gosalbo Bono (Leiden, Koninklijke Brill, 2017) 174; H Labayle, ‘Faut-il faire confiance à la confiance mutuelle?’ in Liber Amicorum Antonio Tizzano. De la Cour CECA à la Cour de l’Union: le long parcours de la justice européenne (Torino, G Giappichelli, 2018) 472; K Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’ (2015) Il Diritto dell’Unione Europea 525 (hereafter referred to as Lenaerts 2015); K Lenaerts, ‘La Vie Après l’Avis: Exploring The Principle Of Mutual (Yet Not Blind) Trust’ (2017) CMLR 805 (hereafter referred to as Lenaerts 2017); P Mori, ‘Quelques réflexions sur la confiance réciproque entre les États Membres: un principe essentiel de l’Union européenne’ in Liber Amicorum Antonio Tizzano. De la Cour CECA à la Cour de l’Union: le long parcours de la justice européenne (Torino, G Giappichelli, 2018) 651; S Prechal, ‘Mutual Trust before the Court of Justice of the European Union’ (2017) 2 European Papers 75; E Xanthopoulou, ‘Mutual Trust And Rights In EU Criminal And Asylum Law: Three Phases Of Evolution And The Uncharted Territory Beyond Blind Trust’ (2018) CMLR 489. 2 See previous note. 3 Opinion 2/13, EU:C:2014:2454.

22  Christiaan Timmermans It is in the light of this evolution that I intend to revisit the Opinion, more particularly the argument developed by the Court that the draft agreement pays insufficient regard to the impact of this principle on the EU legal system and thus risks to undermine the autonomy of EU law. I have chosen this subject to honour Allan Rosas, a long-time compagnon de route during my professional life, and not only at the Court of Justice. Indeed, the protection of fundamental rights and the law on external relations, both touched upon by this contribution, are fields of law to which Allan Rosas has contributed greatly as the scholar he is. The following comments will put in context the principle of mutual trust, first by discussing its relationship with the principle of mutual recognition, then analysing the genesis of this principle and its evolution in the case law: what is the foundation, the justification for mutual trust? Trust in what? What is the legal status of this principle, what are its legal consequences? Why should this trust be mutual and what is the significance of being mutual? I shall then revisit Opinion 2/13 and the relationship between the Court of Justice and the European Court of Human Rights (ECtHR) as results from the most recent case law of both Courts.

II.  Mutual Recognition and Mutual Trust Mutual trust and the principle of mutual trust are often related to or referred to together with the principle of mutual recognition both in EU legislation4 and in the case law. The Court has repeatedly stressed the close link between the two principles by considering that mutual recognition is being based on or requiring mutual trust, or that mutual trust is justifying mutual recognition.5 The latter principle is much more familiar. That EU law may require Member States to recognise or take into consideration facts or legal acts originating in the legal system of another Member State is well established, and for a long time already.6 The principle of mutual recognition may be considered a horizontal, general principle of EU law, initially more particularly developed in case law related to the internal market. But it has also been recognised for the AFSJ. The European Council of Tampere has endorsed the principle of mutual recognition ‘which, in its view, should become the cornerstone of

4 See, eg, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1, rec 21: ‘The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust …’; Regulation (EU) No 1215/2012 of the E ­ uropean Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2012] OJ L351/1, rec 26: ‘Mutual trust in the administration of justice in the Union justifies the principle that judgments given in a Member State should be recognised in all Member States without the need for any special procedure.’ 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ 190/1, rec 10: The mechanism of the European arrest warrant is based on a high level of confidence between Member States. 5 Eg Joined Cases C-187/01 and C-385/01 Gözütok EU:C:2003:87, para 33; Case C-491/10 PPU Zarraga EU:C:2010:828, para 70; Case C-92/12 PPU Health Service EU:C:2012:255, para 103; Joined Cases C-404/15 and C-659/15 PPU Aranyosi EU:C:2016:198, paras 75–77; Case C-216/18 PPU LM EU:C:2018:586, paras 36 and 37. 6 Eg Case 16/78 Choquet EU:C:1978:210; Case 27/80 Fietje EU:C:1980:293; Case C-340/89 Vlassopoulou EU:C:1991:193. See also W van Ballegooij, The Nature of Mutual Recognition in European Law (Maastricht, Metro, 2015).

How Trustworthy is Mutual Trust? Opinion 2/13 Revisited  23 judicial co-operation in both civil and criminal matters within the Union’.7 The Treaty on the Functioning of the European Union (TFEU) refers explicitly in Title V on the Area of Freedom, Security and Justice, to the mutual recognition of judgments in criminal matters (Article 67(3) TFEU) and the principle of mutual recognition of judicial and extrajudicial decisions in civil matters (Article 67(4) TFEU).8 The principle of mutual recognition is of a relative nature. That is to say this ­principle may not be considered as imposing an absolute, unconditional obligation of mutual recognition. The case law about the fundamental freedoms makes this crystal-clear. In the absence of harmonisation Member States are allowed to adopt measures for the protection of legitimate public interests, provided the necessity and proportionality, the coherent and systematic nature of such measures can be demonstrated. If one or more of these conditions are not being fulfilled, the law of the Member State of origin must be recognised.9 The proportionality test more particularly imposes a high bar to refusing that recognition. Even if all the conditions have been satisfied, that foreign law must nevertheless be recognised when the good, service or person has already had to respect in the Member State of origin similar measures assuring an equivalent level of protection. However, the Member State of destination may always try to argue that its legislation is providing for a higher level of protection and at the same time respects the conditions of necessity and proportionality. In this regard Member States according to the case law may invoke a margin of appreciation, which will be more or less wide depending also on the nature of the public interest in question.10 Also when national fundamental rights are involved, Member States are in principle allowed to follow their own constitutional approaches, even if these substantially differ from those of other Member States.11 Thus, far from imposing an unconditional obligation, the principle of mutual recognition is characterised by its flexible nature. It is in my view more a rebuttable legal presumption than a full-fledged legal principle.12 Of course, this regulatory freedom of Member States may be limited by harmonisation. In that regard the interesting question arises of whether the Union legislature may prescribe respect of the principle of mutual recognition without any accompanying harmonisation. The Services Directive is giving (implicit) examples of that.13 In this respect the position and role of the principle of mutual recognition are different within the AFSJ than for the internal market. For the internal market the principle of mutual recognition may be considered implied in the proportionality test14 and thus be part and parcel of the fundamental freedoms. The role of this principle within the AFSJ 7 Tampere European Council 15 and 16 October 1999. Presidency Conclusions para 33. 8 See also Art 82(1) and (2) TFEU. 9 Eg Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’) EU:C:1979:42. 10 See for instance the case law on lotteries and betting, eg Case C-46/08 Carmen Media EU:C:2010:505 with further references. 11 Eg Case C-36/02 Omega Spielhallen EU:C:2004:614; Case C-208/09 Sayn-Wittgenstein EU:C:2010:806. 12 Cp W van Ballegooi (n 6 above) at 356: ‘Mutual recognition entails a process of recognising and giving effect to factual and legal situations established in other Member States. That process contributes to free movement but does not guarantee it’. 13 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L 376.36, Art 14, as interpreted in Case C-593/13 Rina Services EU:C:2015:399. 14 cf T Blanchet (n 1 above). For a good example see Case 25/88 Bouchara EU:C:1989:187, paras 16–18.

24  Christiaan Timmermans is more prominent. The treaty rules on AFSJ do not provide for particular freedoms, for instance of free circulation of judgments of Member States’ courts, freedoms with direct effect. Moreover, Member States were reticent to accept far-reaching harmonisation competences of substantive law in the field of criminal law particularly, that law being regarded as belonging to the core of national sovereignty. This explains why for the AFSJ a much more important role was attributed to the principle of mutual recognition, as results also from the various references to that principle in Title V TFEU, than has been the case for the internal market. To the extent full harmonisation was not deemed acceptable, emphasis was put on mutual recognition as the guiding principle to achieve the objectives of crossborder judicial cooperation; in other words: mutual recognition as a partial substitute for harmonisation. According to Lars Bay Larsen, the European Council of Tampere favoured a vast application of that principle over harmonisation.15 But only a partial substitute because some harmonisation, also to specifically regulate the cross-border mechanisms of cooperation remains indispensable. Indeed, Articles 81 and 82 TFEU when stating the principle of mutual recognition refer at the same time and in combination to harmonisation. Mutual recognition will often be an act of faith. Recognising and accepting ‘products’ of a foreign law system, particularly in the absence of substantive harmonisation, will normally imply some degree of uncertainty about the adequacy of and the guarantees respected by that ‘product’ compared with those applicable in the incoming Member State. It is particularly, I think, because of that uncertainty that the Union legislature and the Court of Justice have had recourse to the concept of trust. It is or it is also because of the trust a Member State must have in the quality of another Member State’s legal system or legal acts that it is possible or even required to recognise ‘products’ of that system as providing for sufficient guarantees justifying acceptance by another Member State’s legal system. It is that trust which enables or facilitates recognition. One could argue that as long ago as the Cassis de Dijon16 line of case law the concept of trust was implicit. It is because the product has been lawfully marketed in the Member State of origin that it must in principle have free access to the market of the Member State of import. There exist however a few examples in the early internal market case law where the concept of trust has been explicitly referred to. In Bauhuis it was because of the harmonised system requiring sanitary controls at the level of exports only that the Member States of import should have trust in the guarantees provided by the inspections carried out by the Member State of export.17 Similarly, according to Hedley Lomas, Member States must rely on trust in each other to carry out the necessary inspections ensuring respect of EU rules concerning slaughtering of animals in abattoirs.18 In both cases trust was justified also because of existing EU legislation. Bouchara goes a step further by requiring a Member State of import, in the absence of any specific harmonisation in that regard, to take into account technical analyses carried out in the Member State of export. The Court invoked to that effect – and that for the first time – ‘a more general principle of mutual trust between the authorities of the Member states’.19

15 L

Bay Larsen (n 1 above) 140. 9 above. 17 Case 46/76 Bauhuis EU:C:1977:6. 18 Case C-5/94 Hedley Lomas EU:C:1996:205. 19 Case 25/88 Bouchara EU:C:1989:187, para 18. 16 n

How Trustworthy is Mutual Trust? Opinion 2/13 Revisited  25 This early case law shows the emergence of the concept of trust as an argument to justify mutual recognition. Indeed, as we shall see, subsequent case law states more explicitly that the principle of mutual recognition is rooted in the principle of mutual trust. The latter is the foundation for the first.

III.  The Evolution of the Principle of Mutual Trust The issue has already been extensively analysed in the literature.20 I therefore limit myself to a few main points. First of all, as has already been alluded to, mutual trust and the principle of mutual trust have played and play a much more prominent role in the AFSJ than for the internal market. This is directly related to the dominant position of the principle of mutual recognition as the instrument for attaining the objectives of the AFSJ. It may be said that the principle of mutual trust has been developed to justify and sustain mutual recognition. The evolution of a principle of mutual trust in the case law has been remarkable both with respect to its contents and the short period of time within which it has occurred. The relevant case law mainly concerns the AFSJ. Two stages can be distinguished in that regard: a first stage of emergence and a second stage of coming of age of the principle and its consolidation.

A.  The First Stage In the first stage the Court is slowly uncovering the contours and the substance of the principle. The approach is fairly casuistic, a fine example of judicial law making or, if you so wish, the judicial process of ‘finding’ the law. Terminology varies. Reference is made to confidence, a high degree of confidence, trust, mutual trust, a principle of mutual trust. The existence of trust is sometimes referred to as an established fact.21 In other cases trust is assumed to exist.22 In still others the Court considers that trust should exist23 or must exist.24 The reasons why this trust should be or must be accepted are mostly not explained. In the few already mentioned cases25 concerning the internal market the existence of trust is related to the existing EU legislation and its application, Bouchara being the exception. In the AFSJ case law, mutual trust is sometimes stipulated because the simplified mechanisms of judicial cooperation cannot function without mutual trust.26 In various cases concerning the European Arrest Warrant the Court to that effect elaborates on Recital 10 of the

20 See n 1 above. 21 Eg Joined Cases C-187/01 and C-385/01 Gözütok EU:C:2003:87, para 33. 22 Joined Cases C-411/10 and C-493/10 NS EU:C:2011:865, para 78; Case C-394/12 Abdullahi EU:C:2013:813, para 52. 23 Case C-396/11 Radu EU:C:2013:39, para 34. 24 Case C-192/12 PPU West EU:C:2012:404, paras 62 and 77. 25 See nn 17, 18 and 19 above. 26 Gözütok (n 21 above), para 33; NS (n 22 above), para 79; Case C-92/12 PPU Health Service EU:C:2012255, para 103.

26  Christiaan Timmermans Framework Decision,27 according to which ‘The mechanism of the European arrest warrant is based on a high level of confidence between Member States.’28 It is not made very clear either what the object of this trust is. Trust in what exactly? Gözütok refers to mutual trust of Member States in their criminal justice systems;29 Rinau, when mentioning the 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments, refers to the principle of trust of the courts of one Contracting State in the decisions taken by the courts of another Contracting State, and vice versa.30 More elaborate and more general is the reference in Zarraga in a case concerning Regulation No 2201/2003 on recognition of judgments in matrimonial matters and the matters of parental responsibility: the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at EU level, in particular by the Charter of Fundamental Rights of the European Union (Charter).31 A somewhat similar reference is made in NS, the asylum case regarding the application of the Dublin mechanism, adding a reference to rights based on the Geneva Convention on refugees and the ECHR.32 A highly important element in this case law of the first stage is that in a few cases concerning the Common European Asylum System the application of the principle of mutual trust is nuanced by construing the principle as a rebuttable presumption.33 Trust is assumed to exist but it can be rebutted in exceptional circumstances, notably in case of a qualified violation of fundamental rights. I shall come back to that. However, the first-stage case law is not generalising this characteristic of a rebuttable presumption for the principle of mutual trust. More generally, this case law is not really clarifying the legal status of this principle and its possible legal consequences.

B.  The Second Stage The principle of mutual trust has only really come of age with Opinion 2/13. Most of the questions raised above about its foundation, object, status and possible legal consequences are being largely answered. The principle as such makes a quantum leap. It is proclaimed to be a fundamental principle of the Union legal order. The President of the Court has qualified it as a constitutional principle of the Union.34 According to paragraph 168 of the Opinion the legal structure of the EU is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.

27 See n 4 above. 28 Eg Case C-388/08 PPU Leyman EU:C:2008:669, para 50; West (n 24 above) para 77; Radu (n 23 above), para 34; Case C-216/18 PPU LM EU:C:2018:586, para 36. 29 n 21 above, para 33. 30 Case C-195/08 PPU Rinau EU:C:2008:406, para 47. 31 Case C-491/10 PPU Zarraga EU:C:2010:828, para 70. 32 NS (n 22 above), para 78. 33 NS (n 22 above), paras 80 and 104; Abdullahi (n 22 above), para 52. 34 Lenaerts 2015, n 1 above, 530, Lenaerts 2017, n 1 above, 806; see also H Labayle (n 1 above) 476.

How Trustworthy is Mutual Trust? Opinion 2/13 Revisited  27 This paragraph answers the question about the foundation of mutual trust. Mutual trust derives from the fundamental premiss that Member States share the common values mentioned in Article 2 TEU on which the Union is founded, and that each Member State recognises that the other Member States share with it those values. Article 2 TEU states unambiguously that those values are common to the Member States. What this premiss adds, is that the commonality of those values is recognised by each Member State. It is more particularly this mutual recognition, I think, which explains and justifies the existence of mutual trust. At the same time, it explains why this trust may be qualified as mutual trust. It is clear that the Court does not derive this recognition from Article 2 TEU itself. Therefore Article 2 TEU cannot be considered the legal basis for the principle of mutual trust. The legal basis is to be found in a deeper layer than the EU Treaties. It is the fundamental premiss, which the Court has derived from the foundations of the EU legal structure. I would therefore hesitate to accept as a legal base for the principle of mutual trust the principle of the equality of the Member States35 or the principle of sincere cooperation.36 Obviously, with this motivation of the existence of the principle of mutual trust the Court has placed the principle at a higher level than when merely invoking the functional argument that in the absence of harmonisation mutual trust is necessary to allow for mutual recognition. The principle has indeed become a fundamental one. Paragraph 168 answers at the same time the question of the object of mutual trust. The mutual trust between the Member States concerns the fact that the fundamental values of Article 2 TEU will be recognised and, therefore, that the law of the EU that implements them will be respected by each of the Member States. I read the latter as covering EU law as a whole. This seems to be confirmed by the second sentence of paragraph 191 (‘each of those States … to consider all the other Member States to be complying with EU law’). If that is correct, mutual trust has a very wide scope. It is not limited to the respect of fundamental rights albeit that this aspect plays a primordial role in the AFSJ (see also paragraph 191 of the Opinion). Finally, the Court answers the questions about the legal status and possible legal consequences of the principle of mutual trust, with remarkable clarity: ‘the principle of mutual trust between the Member States is of fundamental importance in EU law’. It is of fundamental importance, the Court continues in paragraph 191, because ‘it allows an area without internal borders to be created and maintained’. As far as AFSJ is concerned, that is so, one may add, because mutual trust allows and endorses mutual recognition, which is an essential instrument in achieving the objectives of the AFSJ. It is important to note that the reference to ‘an area without internal borders’ does seem to imply not only the AFSJ but also the internal market (see Articles 3(2) TEU, 26(2) TFEU and 67(2) TFEU). That should follow also from the second sentence of paragraph 191 (‘That principle [of mutual trust] requires, particularly with regard to the [AFSJ] …’).37 The Court has given an indication to that effect in the Donnellan case.38 In my view, the principle of mutual trust must be considered a fundamental principle of general applicability within the EU legal order. This general scope is also in conformity with the reasons given by the Court supporting the acceptance of the principle of mutual trust.

35 Lenaerts

2017, n 1 above, 808. Blanchet, n 1 above, 184. 37 Emphasis added. 38 Case C-34/17 Donnellan EU:C:2018:282, para 41. See also Bouchara (n 19 above). 36 T

28  Christiaan Timmermans As far as possible legal consequences are concerned, the Court has first of all clarified in Opinion 2/13 that the principle of mutual trust may impose obligations on Member States and thus entail legal consequences. ‘That principle requires, particularly with regard to (the AFSJ), save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law …’ (para 191). Paragraph 194 also refers to ‘an obligation of mutual trust’. More particularly with regard to the AFSJ Member States may in application of this principle ‘be required to presume that fundamental rights have been observed by the other Member States’.39 The consequences of this obligation are further exposed. First, the Member States may ‘not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law’.40 This wording covers the Melloni case but goes much further. Whether this has been the intention of the Court, will have to be clarified by future case law. Indeed, Melloni was a special case insofar as the implications of the fundamental right in question had been further specified by secondary EU legislation.41 The Court mentions as a second consequence of the obligation imposed by the principle of mutual trust that ‘save in exceptional circumstances, [the Member States] may not check whether that other Member State has, actually, in a specific case, observed the fundamental rights guaranteed by the EU’.42 One notes that the obligations imposed by the principle of mutual trust are not absolute and unconditional. They establish a presumption, which may be rebutted.43 This continues the line of case law established by NS and Abdullahi.44 Moreover, there is the reference in paragraphs 191 and 192 of the Opinion 2/13 to exceptional circumstances, which may justify a departure from the principle of mutual trust. Members of the Court have stressed in their academic writings that mutual trust is not blind trust.45 As Lars Bay Larsen wrote in 2012: ‘Mutual Trust is Good – But it Has its Limits’.46 Subsequent case law confirms and further develops the interpretation of the principle of mutual trust in Opinion 2/13. This includes the interpretation of the principle as a rebuttable presumption.47 Also the Union legislature has now made this explicit in one of the directives regarding judicial cooperation in criminal matters.48 The acceptance of a principle of mutual trust has not been universally applauded by academic writing.49 This is not astonishing. To legalise the notion of trust by accepting it as a possible source of legal obligations is a delicate exercise. Trust is always subjective. It is to some extent a fiction. It is a state of mind of uncertain duration. Trust may be lost. To impose an obligation of trust and derive specific legal effects from that obligation is therefore difficult to reconcile with the notion of trust. The Court has tried to solve this problem 39 ibid, para 192. 40 ibid. 41 Case C-399/11 Melloni EU:C:2013:107. 42 ibid. 43 See Opinion 2/13, EU:C:2014:2454, para 192. 44 n 22 above. 45 S Prechal (n 1 above), Lenaerts 2017, n 1 above, 806. 46 L Bay Larsen, n 1 above, 148. 47 Case C-578/16 PPU C.K. EU:C:2017:127, paras 70 and 95; Case C-367/16 Piotrowski EU:C:2018:27, para 50. 48 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] JO L130/1, recital 19. 49 T Blanchet (n 1 above) 211; E Xanthopoulou (n 1 above) 500/1.

How Trustworthy is Mutual Trust? Opinion 2/13 Revisited  29 by clothing the principle in the legally well-known cover of a rebuttable ­presumption. Indeed, one could argue that a legal principle imposing trust must by the very nature of the notion of trust be rebuttable. This however raises the question of whether the notion of trust is at all necessary? Could the principle of mutual trust not simply be replaced by a rebuttable presumption that Member States, because of the commonality of values on which the EU is founded (Article 2 TEU) and their recognition thereof, are presumed to respect EU law, and, within the framework of the AFSJ, more particularly fundamental rights? That approach has been suggested by Thérèse Blanchet. I would not be in favour of that. A principle of mutual trust has a special dimension, which a mere legal presumption would not have. It has a certain emotional connotation, which fits well in a constitutional language attempting to qualify the implications of the interrelationships between the Member States in the EU legal order. (Albeit that the Court itself has not qualified the principle of mutual trust as a constitutional principle.) But of course, the principle must have and continue to have the nature of a rebuttable presumption. There is still another element to be mentioned in this regard. It is not a principle of trust but a principle of mutual trust the Court is referring to. The Court has not further elaborated on this aspect, apart from insisting that the commonality of the fundamental values is recognised by all Member States also vis-à-vis each other. The fact that the trust is mutual could also be seen as a further basis for trust. Trust is strengthened because it is reciprocated.

IV.  Opinion 2/13 Revisited Having put the principle in context, and also the most recent case law, it is now time to revisit the fundamental objection raised by the Court in the Opinion, according to which the draft agreement on the accession of the EU to the ECHR (Draft Agreement) does not sufficiently take into account the consequences of the principle of mutual trust once the EU was a Contracting Party to the Convention. The difficulty the Court raises, is the following. According to the Draft Agreement the position of the Union as a Contracting Party of the Convention will be equal to that of all other Contracting Parties, which are States. It follows also that when EU law governs relationships between Member States, the latter will remain fully subject to their obligations under the Convention. Indeed, one would think, the Draft Agreement does not provide for a disconnection clause and could not possibly do so. This situation could cause a conflict with the principle of mutual trust. Indeed, there is a risk that the Convention would oblige a receiving Member State in situations of crossborder judicial cooperation (recognition of judgments, European arrest warrants etc) to control whether the Member State of origin has ensured the necessary protection of rights whereas the principle of mutual trust would prohibit such control. The Draft Agreement not providing a solution for such a conflict, accession is liable to undermine the autonomy of EU law.50



50 See

Opinion 2/13, EU:C:2014:2454, para 194.

30  Christiaan Timmermans The risk of such a conflict of obligations seems highly theoretical considering the evolution of the case law of both the ECJ and the ECtHR demonstrating mutual comity ensuring coherence and conflict avoidance. Moreover, it seems to me that the Draft Agreement provides already for a procedural mechanism allowing handling and solving such a conflict of loyalties of Member States in full respect of the autonomy of the EU legal order.

A.  The Loyal Cooperation between the ECJ and the ECtHR Through their Case Law We have seen already that the principle of mutual trust may be departed from in exceptional circumstances, allowing or obliging the receiving Member State to control whether the issuing Member State has ensured an adequate protection of fundamental rights.51 It is particularly when interpreting the notion of exceptional circumstances that the Court has closely followed the case law of the ECtHR. If the decision in NS insisting on the existence of systemic deficiencies in this protection52 had raised doubts about the compatibility with the Strasburg case law, subsequent decisions in cases like Aranyosi,53 CK,54 LM,55 and ML56 have shown full coherence in the approach of both Courts. This evolution, having been extensively analysed in legal writing, needs no further explication.57 A telling example of the close cooperation between both Courts is given in the NS case, where the ECJ bases its conclusion about existing systemic deficiencies in the reception centres for refugees in Greece on the factual assessments made in that regard by the Strasburg Court in the MSS case.58 This coherence is not at all surprising. The EU is already obliged by treaty law to respect coherence in so far as the Charter imposes an obligation on the EU and its Member States, when implementing EU law, to respect the Convention as a minimum level of protection where rights provided for by the Charter correspond with Convention rights (­Article  52(3) Charter). Rosas and Armati wrote in 2010 that also because of this provision the risk of conflict between Strasbourg and Luxembourg case law had become negligible.59 If the early case law on the Charter was not very explicit about this obligation, this has changed in recent case law. Whereas Aranyosi60 only implicitly refers to Article 52(3) of the ­Charter, the most recent cases like CK61 and X62 do so explicitly, adding ample references to the ECtHR case law. More generally, such references have 51 ibid, paras 191/2. 52 n 22 above. 53 n 5 above. 54 n 42 above. 55 n 28 above. 56 Case C- 220/18 ML EU:C:2018:589. 57 Eg Lenaerts 2017, n 1 above; T Blanchet, n 1 above. 58 NS (n 22 above), paras 88–90. 59 A Rosas and L Armati, EU Constitutional Law (Oxford, Hart Publishing, 2010) 153. 60 n 5 above, paras 86 and 87. 61 n 47 above, para 67. 62 Case C-175/17 X EU:C:2018:776, para 35 with further references. See also T von Danwitz, ‘La protection des droits fondamentaux dans l’ordre juridique de l’Union’ in Liber Amicorum Antonio Tizzano. De la Cour CECA à la Cour de l’Union: le long parcours de la justice européenne (Torino, G Giappichelli, 2018) 1020 at 1026.

How Trustworthy is Mutual Trust? Opinion 2/13 Revisited  31 now become more frequent, contrary to the early case law concerning the Charter after its entering into force. The Strasbourg Court also is well aware of this provision of the Charter. In its judgment in Avotins v Latvia that Court, when considering the application of the Bosphorus presumption (see below), opines: In examining whether, in the case before it, it can still consider that the protection afforded by EU law is equivalent to that for which the Convention provides, the Court is especially mindful of the importance of compliance with the rule laid down in Article 52(3) of the Charter of Fundamental Rights given that the entry into force of the Treaty of Lisbon … conferred on the Charter the same legal value as the Treaties.63

Had the ECJ loyally taken into account the case law of the ECtHR, the same might be said for the latter with regard to the former. The judgment of the Grand Chamber in Avotins gives a telling example, and in various respects. The case concerns the recognition and enforcement of a decision of a Cypriot court, by the Supreme Court of Latvia in accordance with the Brussels I Regulation.64 First of all, the Strasbourg Court, in answering the argument of the applicant that the Supreme Court of Latvia had breached Article 34(2) of the Brussels I Regulation, emphasises in conformity with its well-established case law regarding the interpretation of national law, that ‘it is not competent to rule formally on compliance with domestic law, other international treaties or European Union law.’ The task of interpreting and applying EU law ‘falls firstly to the [ECJ] … and secondly to the domestic courts in their capacity as courts of the Union … The jurisdiction of the European Court of Human Rights is limited to reviewing compliance with the requirements of the Convention’.65 This is an unambiguous answer to the concerns expressed by the ECJ in Opinion 2/13 that, after the accession of the EU, actions by any decision-making body under the Convention ‘must not have the effect of binding the EU … to a particular interpretation of the rules of EU law’.66 Secondly, the Strasbourg Court accepts the applicability of the Bosphorus presumption also in the context of the AFSJ and cross-border judicial cooperation. According to this presumption the protection of fundamental rights granted by the EU legal order including the supervisory mechanism under EU law is considered to be equivalent to that of the Convention.67 Thus, when an EU Member State is merely implementing its obligations under EU law and the potential of the EU supervisory mechanism, including the preliminary procedure of Article 267 TFEU, has been fully deployed, that Member State is presumed to have respected the Convention. However, in an individual case that presumption may be rebutted if the protection of Convention rights has been manifestly deficient.68

63 Avotins v Latvia, App No 17502/07, judgment of 23 May 2016, para 103. 64 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1. 65 ibid., para 100. 66 Opinion 2/13, EU:C:2014:2454, paras 184 and 186. The hands-off approach of the Strasbourg Court with regard to the interpretation of EU law also leaves full scope for an autonomous interpretation of Charter rights by the ECJ, as rightly emphasised by Thomas von Danwitz in his contribution to the Liber Amicorum Antonio Tizzano (fn 62). 67 Bosphorus Airways v Ireland, App No 45036/98, judgment of 30 June 2005. 68 Avotins (n 64 above), paras 105–12.

32  Christiaan Timmermans Thirdly, it is important to note that when applying the Bosphorus presumption in the Avotins case the Court focuses not on the action of the defendant state as such, but on the EU recognition mechanism as a whole. It accepts the objectives of greater effectiveness and simplicity to be provided by this mechanism, also that the methods used could regulate the fundamental rights protection tightly or even limit that protection as long as the result in an individual case does not amount to a manifestly insufficient protection of Convention rights, which could not be remedied by EU law. Thus the Court takes fully into account the specificity of the EU regime in question and accepts also the consequences of the principle of mutual trust to which it explicitly refers.69 When one compares the evolution of the ECJ case law on the notion of exceptional circumstances justifying an exception to mutual trust and the ECtHR exception to the Bosphorus presumption of a manifest deficiency, both approaches could be considered fully coherent. As Koen Lenaerts has written: ‘the rationale underpinning Avotins v Latvia is consistent with the interpretation of the principle of mutual trust endorsed by the ECJ in NS, CK and ­Aranyosi and Caldararu.’70 One could say this also the other way round. These EU judgments ensure full coherence with the Strasbourg case law. Moreover, it could also be said that already now before accession to the ECHR, the Strasbourg Court by the manner in which it applies the Bosphorus presumption pays due regard to the intrinsic nature of the EU and the particular position of the Member States, as Contracting Parties of the Convention, when implementing EU law.71 Of course, it is not at all certain whether the Bosphorus presumption will survive accession.72 Moreover, it could and has been argued, it is better to exclude any risk of seeing this situation of double loyalty of a Member State turn into a conflict after accession in a particular case, than awaiting what the future will bring. It is true that a future conflict after accession cannot be excluded, particularly in a situation where the consequences of the principles of mutual trust and mutual recognition would have been regulated in detail by harmonisation measures. One might think of cases such as NS73 and Melloni.74 Such situations will not easily occur because of the exceptions normally included in secondary legislation. And finally, there remains the obligation under Article 52(3) Charter, already referred to, according to which in case of corresponding Convention rights the protection granted by the Convention must be respected as a minimum level. Be that as it may, the Court has concluded in Opinion 2/13 that the Draft Agreement does not contain a provision preventing such a conflict of loyalties, risking undermining the autonomy of EU law.

69 ibid, paras 113–16. 70 Lenaerts 2017, n 1 above, 828. 71 cf Opinion 2/13, EU:C:2014:2454, para 193. 72 See for further discussion NL Arold Lorenz, X Groussot and GT Petursson, The European Human Rights Culture – A Paradox of Human Rights Protection in Europe? (Leiden, Martinus Nijhoff Publishers, 2013) 250; O De Schutter, ‘Bosphorus Post-Accession: Redefining the relationship between the European Court of Human Rights and the Parties to the Convention’ in V Kosta, N Skoutaris and VP Tzevelekos (eds), The EU Accession to the ECHR (Oxford, Hart Publishing, 2014) 177; C Timmermans, ‘Some personal comments on the Accession of the EU to the ECHR’ in ibid 333 at 337. 73 n 22 above. 74 n 41 above.

How Trustworthy is Mutual Trust? Opinion 2/13 Revisited  33

B.  The Co-respondent Mechanism being the Solution? I wonder whether Opinion 2/13 in this regard takes sufficient account of the mechanisms provided for by the Draft Agreement to solve the problems accession could entail because of the special relationships between the Union and its Member States, more particularly the intertwining of EU law and implementing national legislation and the composite nature of responsibilities following therefrom. I am referring to the co-respondent mechanism.75 Would a Member State after accession be confronted with a possible conflict between its Convention obligations and those deriving from EU law, and would in such a case a complaint be lodged in Strasburg against the measure that a Member State has finally adopted in conformity with EU law, the Union could participate as a co-respondent in the procedure before the Strasbourg Court. If that Court established a violation of the Convention, the Union could be condemned, together with the Member State in question. If in the end the Union was to be held fully responsible for the violation – the allocation of responsibilities would have to be decided according to internal procedures of the Union yet to be established – the responsibility would be engaged where it belongs, that is by the Union. It would then be up to the Union to adapt its legislation. In so doing the problem would be solved for the Member State. Any conflict of loyalties would simply disappear. I wonder therefore whether the application of the co-respondent mechanism would not be sufficient to meet the objection raised by the Court. Of course, that could not be so if that objection does not so much concern the position of the Member States but more specifically the fact that the Union legislation and finally, the application of the principle of mutual trust would have to give precedence to the Convention. However, it would be unimaginable that this would be the purport of the Opinion. That would imply that the Union in this regard would not accept the jurisdiction of the Strasbourg Court, notwithstanding the considerations of the Opinion quite generally accepting that jurisdiction.76 Any such claim of immunity to external control would involve vast fields of EU law covering both the internal market and the AFSJ. On the other hand, how to justify that such an exception should be limited to the principle of mutual trust, and not apply to other principles as well? And finally, acceptance of such a claim would require a general reservation not allowed by the ECHR (Article 57), not to mention that one may expect the other Contracting Parties to the Convention firmly opposing this. It seems to me that the solution for the objection raised by the Court could be looked for in a Declaration explaining the guarantees to be given in this regard by the co-respondent mechanism and the internal rules to be established for its implementation.

V.  Final Remark How trustworthy is mutual trust? We have seen that the Court of Justice, insisting as it does on the fundamental role of the principle of mutual trust, at the same time fully accepts the



75 See

for more details the publication The EU Accession to the ECHR (n 72 above). 2/13, EU:C:2014:2454, paras 181/2 and 185.

76 Opinion

34  Christiaan Timmermans essential characteristics of trust. Trust cannot be transformed on the level of the law into an absolute notion. Trust can be lost. The trustworthiness of mutual trust and the principle of mutual trust are therefore necessarily limited – fortunately so. Sometimes trust in the protection of fundamental rights must be abandoned in order to ensure protection of those rights. The critical situation in some Member States with regard to respect of the rule of law presents many sad examples. In that regard one must congratulate the Court of Justice for not having shied away from taking up the challenge and mounting a principled defence of the fundamental values on which the European Union is founded.77

77 See Case C-64/16, Associação Sindical dos Juízes Portugueses EU:C:2018:117; Case C- 216/18 PPU LM (n 28 above); Order of the Vice-President of the Court of 19 October 2018 in Case C-619/18 R Commission v Poland, EU:C:2018:852, confirmed by the Order of the Grand Chamber of the Court of 17 December 2018 in the same case, EU:C:2018:1021.

3 National Identity and European Construction JOSÉ NARCISO DA CUNHA RODRIGUES

I.  National Identity and European Union Law In anthropological terms, an identity is built on the relationship between individuality and alterity. In limit situations, an identity may expand itself or disappear, as shown in the universe of Milan Kundera: ‘there are situations in which we fail for a moment to recognise the person we are with, in which the identity of the other is erased while we simultaneously doubt our own’.1 Taking the concept of identity to the community environment and giving it a legal context is a challenge to which I will try to respond using European Union law as a reference. The principle according to which the EU respects the identity of its Member States dates back to the Treaty of Maastricht. This Treaty merely proclaimed that ‘the Union shall respect the national identities of its Member States …’.2 Nevertheless, this proclamation represented a new phase in the integration process. This rule was maintained by the Treaty of Amsterdam, but in a more complex political context. On the one hand, Member States feared that an emerging European identity would put national values into question. On the other hand, Member States intended to emphasise their supremacy towards regions which were revitalised by the creation of the Committee of the Regions. The introduction of the principle of subsidiarity aimed to monitor and, in a sense, to limit the exercise of Community competences protecting the idea of identity. Article 151(1) of the EC Treaty stated that ‘the Community shall contribute to the development of the cultures of the Member States while respecting their national and regional diversity’. Subsequently, the Treaty of Lisbon reiterated and expanded the principle of respect for national identity. In accordance with Article 4(2) TEU, The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

1 M

Kundera, Identity: A Novel (New York, HarperCollins Publishers, 1999). F(1).

2 Art

36  José Narciso da Cunha Rodrigues Article 4(1) and (3) TEU also establishes the principles of conferral and sincere c­ ooperation. The powers of the EU are delimited by the principle of conferral while their exercise is subject to the principles of subsidiarity and proportionality. It is said that Article 4 TEU established national identity as a counterpart to the primacy of the EU law. I, however, do not share this opinion. As is generally recognised, the Treaty of Lisbon aimed to compensate the advances that were being introduced into the integration process. In a spirit of monitored integration, the Lisbon Treaty extended the rights of the European Parliament to the detriment of the rights of the Council, and reduced the number of cases in which a unanimous vote by the Council was required. It also established the need for ratification by Member States of any changes widening the competences of the EU. In addition, it explicitly acknowledged the right of any Member State to withdraw from the EU.3 For a considerable number of scholars, respect for national identity may be invoked by Member States as a procedural means to scrutinise the legality of legislative acts of the EU. This theory has been welcomed by certain Member States which were reluctant to engage in the integration process. Politically, it reflects the case law of some constitutional courts in the sense that national courts may examine the legislation of the EU not only when ­European institutions are acting ultra vires but also when, by acting intra vires, they breach the ­principle of conferral or the principle of respect for national identity.4

II.  Constitutional Courts and the Court of Justice The German Constitutional Court is the leading exponent of this jurisprudence. In recent judgments, this court ruled that the judicial review enables the national actors to examine the compatibility of their Constitutions with the competences exercised by the Institutions of the EU. The judgment in Lissabon-Urteil (30 June 2009) emerges in this respect as a doctrine that develops the Solange II and Maastricht cases according to a formula that appeals to the idea of constitutional identity. At the same time, it confirms the need for national parliaments’ intervention in cases related to partial transfer of the sovereignty to a supranational level. The essence of this judgment lies in the so-called ‘Eternity Clause’, contained in Article 79º, § 3, of the German Constitution that, according to established interpretation, enshrines, in particular, the intangibility of democracy, the rule of law, the welfare state, the Republic, the Federal State and fundamental rights as irremovable principles of the Constitution. The German Constitutional Court refers to a ‘responsibility for integration’ which would have as its agents, in particular, national parliaments and governments. The process of integration should develop itself in terms of an integration secundum constitutionem and not

3 Art 50 TEU. See T Konstadinides, ‘The constitutionalisation of national identity law and its implications’, uaces.org/document/papers/1301/Konstadinides.pdf, accessed August 2017. 4 See V Baldini, ‘Il respetto dell’identitá costituzionale quale contrapeso al processo di integrazione europea’ in (2010) Rivista dell’Associazone italiana dei Costitizionalisti, N00, http://archivio.rivistaaic.it/rivista/2010/00/ Baldini01.pdf, accessed August 2018.

National Identity and European Construction  37 following a, so to speak, customary model, which was in place up to that moment.5 The relationship between national identity and European Union law would thus be based on a multilevel (national and supranational) structure. As a result of this jurisprudence, the German Constitutional Court shifted from a reactive constitutional pluralism to a proactive constitutional pluralism. The German Constitutional Court’s position on the primacy of EU law is well-known. The preliminary rulings coming from German courts which gave rise to the judgments Handelgesellschaft and Nold,6 in the 1970s, somehow led to Solange I,7 Solange II,8 Maastricht,9 Lissabon‑Urteil10 and Honeywell.11 The theory of the ‘counter-limits’, which seeks to define the criteria for the respect of constitutional rules at national level in order to safeguard fundamental values contained in the expression ‘national identity’, has been built around the aforementioned judgments.12 It is certain that the ‘counter-limits’ theory often contains inaccuracies concerning the acquis communautaire and has faced stages of construction and deconstruction. The truth is, however, that the decisions of the German Constitutional Court since Solange II have had repercussions in other constitutional courts.13 As part of this problematic issue, the question of priority of constitutional review examined by the Court of Justice (ECJ, or Court) in the Melki and Abdeli judgment deserves attention.14 The debate generated by this decision focused on an alleged shift in the case law by the Court (which had started with the Simmenthal judgment15 and continued with the judgments in Rheinmühlen-Düsseldorf,16 Irish Creamery Milk Suppliers and Others,17 Mecanarte,18 Cartesio,19 and Elchinov20), according to which national courts are free to refer questions for a preliminary ruling and must consider as not applicable the rules or decisions that forbid them to proceed in this way.

5 In the Honeywell judgment of 6 July 2010, the German Constitutional Court included in its supervisory powers a test of constitutional identity. 6 Cases 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel EU:C:1970:114 and 4/73 Nold KG v Commission EU:C:1974:51. 7 See Decision of 29 May 1974, BVerfGE. 8 See Decision of 22 October 1986, BVerfGE. 9 See Decision of 12 October 1993, BVerfGE. 10 See Decision of 30 June 2009, BVerfGE. 11 See Decision of 6 July 2010, BVerfGE. 12 See JP Jacqué, ‘La Cour de Justice de l’Union Européenne et la théorie des «contre limites»’, www.droit-unioneuropeenne.be/432984946, accessed August 2017. See also D Freitas do Amaral and N Piçarra, ‘The Treaty of Lisbon and the principle of the primacy of the European Union: an “evolution in continuity”’ (2009) 1 Revista de Direito Público 9. 13 The German Constitutional Court reiterated this jurisprudence in subsequent decisions, particularly in the Gauweiler case (2014). There is visible similarity in decisions of the Spanish Constitutional Court (2004), the French Constitutional Council (2006) the Constitutional Court of Czech Republic (2007, 2008 and 2012) and the Constitutional Court of Poland (2010). 14 See Joined Cases C-188/10 and C-189/10 Melki and Abdeli EU:C:2010:363. 15 See Case 106/77 Amministrazione delle finanze dello Stato v Simmenthal EU:C:1978:49. 16 See Case 166/73 Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel EU:C:1973:162. 17 See Joined Cases C-36/80 and C-71/80 Irish Creamery Milk Suppliers Association EU:C:1981:62. 18 See Case C-348/89 Mecanarte-Metalurgica da Lagoa v Alfandega do Porto EU:C:1991:45. 19 See Case C-210/06 CARTESIO Oktató és Szolgáltató bt. EU:C:2008:723. 20 See Case C-173/09, EU:C:2010:581.

38  José Narciso da Cunha Rodrigues There was, however, no such change in the jurisprudence. In order to guarantee the effectiveness of EU law, the Court focused solely on the topic of the duration of a preliminary ruling concerning constitutionality and conventionality. It should be recalled that this judgment did not treat the question of national identity, an issue which was overlooked by the Court although it had been addressed in the procedure, creating expectations. As early as the Arcelor case,21 Advocate General Poiares Maduro had announced, with regard to the relationship between constitutional and Community law, that he was going ‘to dispel certain fears of a possible conflict … unjustified, given the common constitutional foundations on which national and Community legal orders are based’.22 Monitoring the principle of national identity has an important symbolic value, albeit sometimes erratic. Very often, one may ask which principle (national identity or constitutional identity) is at stake. The notions of constitutional identity and national identity can be often considered interchangeable. Certain Advocates General use the expression ‘constitutional identity’ to characterise the essence contained in Article 4(2) TEU. Nevertheless, according to many scholars, the notions of ‘national identity’ and ‘constitutional identity’ correspond to autonomous concepts in spite of the difficulty to establish the differences between them. It is easier to recognise that the constitutions do not define per se the concept of identity, considering that the nation has its foundations in ‘pre-constitutional conditions’.23 The epistemological area in which the debate has evolved shows that the subject of dialogue between the German Constitutional Court and the legal framework of the EU has prioritised the notion of constitutional identity. In fact, the core of the argumentation lies essentially in the protection of sovereignty.24 There are less radical conceptions, however. Some propose abandoning the theories of sovereignty, or postulate a concept of multilevel sovereignty which allows the compatibility of the intangibility of the legal order of the EU with the constitutional identity of Member States.25 Another conception derives from a conflictual logic based on principles and interests which embody national identity vis-à-vis the EU legal system. In this context, it would be up to the ECJ to verify whether these principles and interests oppose that legal system and to solve the conflict. What can be said in this respect? The issue of national identity brings us three possible scenarios. The first touches on the field of sovereignty and confronts the Constitutions of the Member States with the EU legal system. The result is the non-application of EU law by

21 See Case C-127/07 Arcelor Atlantique and Lorraine and Others EU:C:2008:728. 22 See JN Cunha Rodrigues, Fiscalização constitucional e reenvio. A questão da prioridade, Estudos em homenagem a António Barbosa de Melo (Coimbra, Almedina, 2013). 23 See S Martin, ‘L’identité de l’État dans l´Union européenne: entre «identité nationale» et «identité constitutionnelle’ (2012) 91 Revue Française de droit constitutionnel 4. 24 See E Cloots, ‘National Identity, Constitutional Identity, and Sovereignty in the EU’, Netherlands Journal of Legal Philosophy, www.bjutijdschrift/rechtsfilosofieentheorie/2016/2/NJLP_2016_045_006/fullscreen, accessed August 2017. 25 See V Baldini, ‘Il respetto dell’identitá costituzionale quale contrapeso al processo di integrazione europea’ (2010) N00 Rivista dell’Associazone italiana dei Costitizionalisti, archivio.rivistaaic.it/rivista/2010/00/Baldini01. pdf, accessed August 2018, and ibid.

National Identity and European Construction  39 national courts when in conflict with the relevant Constitution. Under this theory, national identity identifies itself with constitutional identity. The transfer of parcels of the EU’s sovereignty to Member States would have given place to a legal system that did not exclude subsequent assignments of identity dimensions, whether or not related to sovereignty. Since the EU’s legal system meets its natural limits in the constitutional identity of the Member States, the respect for the identity would be a mechanism to safeguard the well-functioning existence of the Member States’ legal system. In the second scenario, national identity dialogues with the EU legal system and obliges it to consider, on the one hand, the national principles and values and, on the other hand, EU law, in order to check whether it is possible to achieve a harmonisation or practical agreement. It corresponds, somehow, to the so-called Schmidberger test.26 The third hypothesis departs from constitutional identity, but does not exclude other principles, values, traditions or social practices. For Jean-Paul Jacqué,27 defining the content of national identity cannot be resolved in abstract. Although its insertion in a constitution is a strong indication, it is not enough. A simple reference will not necessarily reveal the nature of the term used and its scope. The method should essentially be based on concrete cases. In this regard, I believe that it is difficult to select the standards to be applied. The expansion of the research can give rise to uncertainty and encourage the return to purely constitutional criteria.

III.  National Identity as Public Policy: Fürstin von Sayn-Wittgenstein For some scholars, the ECJ would tend to move towards a form of constitutionalism in which Member States would be granted a monopoly over the definition of the interests inherent in national identity while the Court would keep the power to determine the compatibility of these interests with the obligations relating to the EU.28 Other authors have noted that the discourse about constitutionalism has a significant symbolic burden in terms of material and procedural legitimacy. For these authors, the way in which the ECJ decides corresponds to a ‘creative adjustment’.29

26 Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich EU:C:2003:333. According to this judgment, since respect for fundamental rights applies both to the Community and to the Member States, the protection of those rights is a legitimate interest which could justify, in principle, a restriction to obligations imposed by Community law, even by virtue of a fundamental freedom guaranteed by the EC Treaty such as the free movement of goods. 27 See n 13 above, at 6. 28 With regard to the draft European Constitution, it was said that, at the moment when the Community legal order evolves into more consolidated forms of constitutionalism, it is the Court’s own position to be ‘constitutionalised’. See A Tizzano, ‘La “Costituzione europea” e il sistema giurisdizionale comunitário’ (2003) Il Diritto dell’Unione Europea 405. 29 Thus, M Wilkinson, ‘Civil Society and the Re-Imagination of European Constitutionalism’ (2003) European Law Journal 458.

40  José Narciso da Cunha Rodrigues Let us verify if this is indeed correct. The Lisbon Treaty did not question the core idea that respect for national identity, as other principles,30 constitutes only an element to be taken into account by the courts of the EU.31 Constitutional review cannot result in abandoning the identity of the liberal constitutional order.32 Advocate General Cruz Villalón stressed these limits by writing that the ECJ’s case law on the primacy of EU law would otherwise be jeopardised. It would be impossible to preserve the EU as we know it if the latter were conditioned by absolute assessment ­criteria at the discretion of the Member States on the basis of constitutional identity.33 It is not difficult to recognise that, whereas prior to the Lisbon Treaty, the concept of national identity suggested a political and cultural interpretation, with this Treaty it has acquired a constitutional dimension. It is, however, to be recalled that, contrary to what we read in some texts, the Advocates General did not line up behind the counter-limits theory. Specifically, Advocate General Poiares Maduro, in his Marrosu e Sardino Opinion,34 in response to the Italian government, argued that national authorities, in particular constitutional courts, should assume the responsibility for defining the nature of the specific national features which may justify a difference in treatment. Those authorities would be in a better position to define the constitutional identity which should be respected by the EU. In any event, it would be for the ECJ to ensure that the assessment is made in accordance with the fundamental rights and objectives which the Court must safeguard in the EU legal order. And, in the Michaniki AE case, he concluded that a Member State may ‘in certain cases and subject, evidently, to review by the Court, assert the protection of its national identity … to justify a derogation from the applicatio n of the fundamental freedoms of movement’.35 He added: Respect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become an instrument allowing Member States to avoid Community law in given fields.36

The ECJ has never deviated from its jurisprudence in the sense that internal constitutional provisions in conflict with the EU law must be set aside and not applied. In substance, this confirms the classic Internationale Handelsgesellschaft judgment of 17 December 1970.37 30 See esp the principles of subsidiarity and proportionality. 31 See A Puttier, ‘Le renforcement de la notion d’identité nationale dans l’Union Européenne’, books.openedition. org/pufr/1555?lang=fr, p 5, accessed August 2017. 32 The Italian Constitutional Court had already adopted the same argument in 1998, arguing that certain ­principles of the Constitution cannot be deprived of their essential content (Judgment 1146). See Silvio Gambino, ‘Identitá costituzionale e primauté eurocomunitaria’ (2012) XXXII, nº 3 Quaderni constituzionale. 33 See Case C-62/14 Peter Gauweiler and Others v Deutscher Bundestag EU:2015:400. 34 Case C-53/04 Marrosu and Sardino EU:C:2005:569. 35 Opinion of AG Poiares Maduro in Case C-213/07 Michaniki AE v Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias EU:C:2008:544, para 32. 36 ibid, para 33. 37 It is opportune to recall the wording of that judgment in order to clarify what the ECJ’s jurisprudence means for the questions at issue. According to the judgment, the application of internal rules or legal notions to validate acts adopted by the EU’s institutions would have the effect of undermining the unity and efficacy of EU law. The validity of such acts can be assessed only according to EU law. Indeed, the law born out of the EU Treaties, an autonomous source, could not, by reason of its nature, be contradicted by any national rules without losing its status. Consequently, invoking an offence, whether to the fundamental rights foreseen by the Constitution of a Member State or to the principles of a national constitutional structure cannot affect the validity of an act of the Union or its effects on the territory of that state.

National Identity and European Construction  41 The first decision in which, after the Lisbon Treaty, the Court directly examined the principle of respect for national identity was the judgment in Fürstin von Sayn-Wittgenstein.38,39 The Court held that, in the context of Austrian constitutional history, the law abolishing the aristocracy, as an element of national identity, may be taken into consideration in balancing legitimate interests with the right of free movement of persons recognised by EU law.40 As is clear from the heading of the chapter entitled ‘Justification for restricting freedom of movement and residence for citizens of the Union’, the Court examined the issue of national identity from the perspective of justification and not of the conflict between the national Constitution and EU law. In paragraph 84 of the judgment, the Court interprets the justification invoked by the Austrian Government as a plea for public order and thereafter (paragraph 92) states that, in accordance with Article 4(2) TEU, the EU respects the national identity of the Member States, of which the republican form of government is part. In the judgment, the principle of respect for national identity was considered as a justification to restrictions that impact economic freedoms. The requirements of the Austrian Constitution were classified as a matter of public order. Once the existence of a restriction was verified, the Court examined the reasoning and deemed that the measures were necessary, taking into account their constitutional scope. Advocate General Eleanor Sharpston did not invoke the principle of national identity in her opinion. She addressed the problem as part of a broad field of justifications (public policy). The Advocate General wrote: Even if a Member State’s national law is the sole law applicable to the determination of the name of one of its citizens, it must comply with EU law when applying that national law in order to change or rectify an entry in a register of civil status when the citizen in question has relied on that entry

38 See Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien EU:C:2010:806, reported by Judge Allan Rosas. Referring, in different contexts, to national identity, see Cases C-156/13 Digibet et Albers EU:C:2014:1756, and C-15/15 Remondis GmbH & Co KG Region Nord EU:C:2016:985. See also Case C-105/2014 Taricco EU:C:2015:555, wherein the question of constitutional identity was invoked in the ruling but not dealt with by the Court. 39 See also Cases C-391/09 Malgozata Runevic-Vardyn EU:C:2011:291, and C‑393/10 Dermod Patrick O’Brien v Ministry of Justice EU:C:2012:110. In the first of these cases, the Court stated that, according to the fourth subpara of Art 3(3) TEU and Art 22 of the Charter of Fundamental Rights of the European Union (Charter), the Union must respect its rich cultural and linguist diversity and Art 4(2) TEU provides that the Union must also respect the national identity of its Member States, which includes protection of a states’ official language. In the second case, one of the questions aimed to know whether EU law must be interpreted as meaning that it is for the Member States to define the concept of ‘workers who have an employment contract or employment relationship’ according to a Framework Agreement on part-time work. The facts concerned the situation of the judges who, in the United Kingdom (UK), are historically described as ‘office holders’ and work outside the framework of an employment contract. The argument of the Latvian Government was that the application of EU law to the judiciary has the result that the national identities of the Member States are not respected, contrary to Art 4(2) TEU. The Court stated that the application, with respect to part-time judges remunerated on a daily fee-paid basis, of Directive 97/81 and the Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment. It is opportune to note that the SaynWittgenstein, Malgozata Runevic-Vardyn and Dermod Patrick O’Brien v. Ministry of Justice cases have been decided by the same Chamber. 40 It can be said that national identity is defined in a similar manner to the identity of the European Union: respect for human dignity, freedom, democracy, equality, rule of law and fundamental rights (Art 2 TEU). See K Lenarts and P Van Nuffel, European Union Law (London, Sweet & Maxwell, 2011) 92; M Rebelo de Sousa, Tratado de Lisboa anotado e comentado (Coimbra, Almedina, 2012) 27–29.

42  José Narciso da Cunha Rodrigues in the context of the exercise of his or her rights as a citizen of the Union to move and reside freely within the territory of the Member States.41

She concluded: A rule having constitutional status in a Member State, based on fundamental considerations of public policy such as equality between citizens and the abolition of privilege, is in principle capable of justifying a prohibition on the acquisition, possession or use by its citizens of noble titles or status or of designations which might lead others to believe that the person in question held such a dignity, even if that prohibition might cause inconvenience to such a person exercising his or her rights as a citizen of the Union to move and reside freely within the territory of the Member States, provided that the principle of proportionality is respected and, in particular, that (a) the prohibition does not extend to the acquisition, possession or use of names which would not normally be interpreted in that way and (b) the Member State in question does not refuse to recognise that a citizen may legitimately be known in other Member States by another name which would not be permissible under its own law, and facilitates such a citizen’s task in overcoming any difficulties likely to ensue from the discrepancy. When applying such a rule to change or rectify a particular entry in the registers, Member States must again have regard to the principle of proportionality, which requires them to take into account such factors as any legitimate expectation which the actions of their own authorities may have led the citizen to entertain, the length of time over which the name may have been used without challenge by those authorities, and the personal and professional interest which the citizen may have in maintaining the use of a previously recognised name. A prohibition on the acquisition, possession or use of a name in a form which differs according to the sex of the person concerned, if it is not based on a fundamental constitutional principle or other consideration of public policy in the Member State concerned, cannot in principle justify a change or rectification of an entry in a register of civil status when the citizen in question has relied on that entry in the context of the exercise of his rights as a citizen of the Union to move and reside freely within the territory of the Member States.42

The Advocate General omitted any reference to national identity. In my view, the Court’s interpretation was consistent with the principle of primacy of the EU law and was based on substantial criteria. According to this interpretation, the state’s organisation, the rule of law, the welfare state and the fundamental rights would undoubtedly fall within the concept of national identity by the mere fact of their inclusion in the constitution. But other values, principles, traditions and practices should not be excluded. The existence of a triangular relationship in which the primacy of EU law, the constitutional identity and fundamental rights interact is an immovable axis within the values and the principles which form the scope whose essential content must be respected. The difficulties have roots on the fact that each of the components of that relationship has a historical and specific nature.



41 Opinion 42 ibid,

in Case C-208/09 Sayn-Wittgenstein EU:C:2010:608, para 36. para 71.

National Identity and European Construction  43 The Fürstin von Sayn-Wittgenstein case reflects in an exemplary manner the nature of this relationship and its complexity. The subjectivation of fundamental rights was initially substantiated by a status of being opposable to the state and, later, to third parties. The enlargement of the protection towards social, economic and cultural rights and the idea of minimal state originated by neoliberal conceptions have had, as consequence, the loss of relevance of the public policies. The levels of protection decreased and the risk of conflict between fundamental rights increased triggering dimensions that highlighted the difference between legality and judicial attitude. I am not speaking about activism. I am speaking about a pre-understanding in which legality and rationality are not the sole factors. The social-cultural environment must also be taken into consideration. Moreover, the judges might observe the individual as a situated person, in order to safeguard the essential content of a fundamental right rather than navigating through the legal system. The Fürstin von Sayn-Wittgenstein case highlights a situation in which economic freedoms are superseded by another value – national identity – an unlikely result in light of the culture in which European law has evolved. The solution expresses a peculiar methodological range, enunciating the ambivalent functionality of the concept of national identity that may be invoked not only in support of fundamental rights, but also as a limit to the exercise of these rights. The way chosen by the ECJ to resolve the conflict between national identity and economic freedoms confirms that we are facing a new area of speculation which, as such, requires legal construction.

IV.  Transformation of National Identity But the relationship between national identity and fundamental rights has other possible implications. In an article on the Taricco I case, Alessandra Silveira and Sophie Perez Fernandes emphasise the required separation between constitutional identity and the higher level of protection of fundamental rights in the EU’s legal system.43 According to them, in the Omega case44 the ECJ would have recognised that the level of protection guaranteed by the German Constitution towards human dignity must prevail over the exercise of economic freedoms protected by EU law, sustaining therefore the highest level of protection. By contrast, in Fürstin von Sayn-Wittgenstein, the Court would not have sought the highest level of protection for the holder of the fundamental right at issue (respect for family life). This analysis is formally correct but perhaps less focused on the issue of constitutional identity and its specificities. As already said, it is possible to find an effective reference framework within the conception of a multilevel pluralism of the European legal system. Relations between EU law and the constitutional law of Member States have been qualified in different ways, each representing a certain angle of analysis: constitutional pluralism, 43 Alessandra Silveira and Sophie Perez Fernandes, A saga Taricco continua: entre identidade constitucional do Estado-Membro e nível mais elevado de protecção dos direitos fundamentais – onde fica a efectividade do direito da UE, Digital ed., Cadernos do Programa de Pós-Graduação DIREITO/UFRGS, vol 12, nº 1, 2017. 44 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn EU:C:2004, 614.

44  José Narciso da Cunha Rodrigues compositional constitutionalism, counterpoint law, multicentric legal system, multilevel constitutionalism, unwritten European social contract or multiculturalism.45 It has been argued that the efforts made by many constitutionalists to define common metaconstitutional criteria which would consist of recognising that both the ‘constitution’ of the EU as well as the national constitutions contain directives that project over the other constitutional system. With the Charter and the Treaty of Lisbon, they found an integrative plan that allows courts to be protagonists instead of antagonists.46 But the issue of the primacy of EU law continues to stand out in this subject. The Treaty of Lisbon did not help in this specific point. Declaration 17, contained in the Final Act, is a vivid example of how to manage an impasse when it recalls that, in accordance with the established jurisprudence of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties prevail over the Member States law, under the conditions laid down in that case-law.47

Does national identity have the relevance attributed to it? Or, regardless of the existence of a supranational legal system, is it only recently gaining visibility as a result of the globalisation and integration processes? There is some ambiguity in the possible answers. National identity is actually becoming an internationalised identity. The interdependence of states has reached areas as diverse as economy, finance, internal and external security, technology and science, telecommunications, energy, environment protection, food production, agriculture and even social security insofar as it is closely linked to growth. With globalisation, there was an acceleration of the processes of change. The technological revolution and mass communication boosted the exchange of ideas, knowledge and values, and influenced the cultural environment, impacting and modifying conceptions and lifestyles and dissolving or weakening key aspects of national identities. The new cultural expressions are now characterised by the specificity, the difference, the diversity and the multiplicity of ideas.48 It is generally recognised that identity’s movements are encouraged by different factors, namely:49 —— the emergence of social spaces in which alternative cultural practices are increasing; —— the promotion of diversity and the claim for rights by minorities; —— the dynamics of micro-worlds within the political concept of the state; —— the political pressure coming from international bodies concerning human rights; —— the appearance of the so-called popular cultures; 45 See Roman Kwiecien, The primacy of European Union law over national law under the Constitutional Treaty (Lublin, Department of Public International law) and Leonard Besselink, ‘National and constitutional identity before and after Lisbon’ (2003) 6 Utrecht Law Review. 46 See P Cruz Villalón, ‘El papel de los tribunales constitucionales nacionales en el futuro de la Unión’, in Une Communité de Droit (Berlin, BWV Berliner Wissenshafts-Verlag, 2003) 271–82. 47 See JN Cunha Rodrigues, Mecanarte Revisited, Estudos em memória do Conselheiro Artur Maurício (Coimbra, Coimbra Editora, 2014) 521–35. 48 Garcia, apud L Arias Sandoval, ‘La identidad nacional en tiempos de globalización’ (2009) XIII, nº 2 Revista electronica Educare 7–16. 49 L Sandoval, ibid, pp 13–14.

National Identity and European Construction  45 —— the plurality of cultural expressions expressed by symbols, fashion, values, knowledge, ideas and social practices; —— the changes in geostrategic balances; and —— the multi-polarity of world powers and the emergence of new markets. In a sense, the rule of law is acquiring a transnational dimension. What are the constituent elements of national identity? American scholars, probably for reasons related to US history, have developed t­ heories that, in some ways, have general validity. Identity would represent a mix of aspirations and political projects that have their sources in the past and produce social changes. Bruce Ackerman criticises a conception where a ‘dualistic democracy’ gathers all expressions of popular sovereignty as well as a ‘Foundationalism’ that intends to resist to any constitutional change.50 For him, identity simply represents the respect for values that are based on an existential continuity and therefore incorporate the changes that, within societies, seek to transcend the past. We are far from the time when ideas and social structures contained key readings which provided elements of stability and sedimentation factors. Nowadays, the concept of identity is highlighted as a momentary attribute exposed to transience and change. That is what Zygmunt Bauman calls liquid modernity.51 Vicissitudes caused by the economic crisis and their repercussions in the legal environment added to these transformations.52 The crisis provoked feelings of destabilisation. References of social life are no longer reliable. The ability to identify the causes through the effects disappears in a circular chain that leads to no solution. The conflict ceases to be polarised and ideological. It is now diffused and even those who aspire to a certain order recognise that one cannot expect much from the law to achieve this objective. The law built under these circumstances is a tactical law. Is does not follow a model or a source. It is foreign to any systemic thinking and it is aimed towards rupture and transience, in detriment of the stabilising purpose of the law. Tactical law often takes into account the symptoms in detriment of the facts. Its intervention beyond rationality only intends to create expectations that help to overcome difficulties, prevent their developments or lead to the belief that something is being achieved. The economic crisis is also exercising pressure on the law and diminishing the coercive force of the rules. It is jeopardising fundamental rights’ centrality. Accordingly, the criteria cannot be limited to the Constitution. It is necessary to adopt a new look that allows restoring the principles and the levels of protection. Traditions, social practices and lifestyles must be taken into consideration as long as they are parameterised by values promoted by the Constitution. It is legitimate, then, asking ourselves about the meaning of the decisions adopted by the constitutional courts of some Member States. In my view, these decisions reflect, above all, a sort of containment manoeuvre in response to some decisions of the ECJ 50 See GJ Jacobsohn, ‘Constitutional identity’ (2006) 68 The Review of Politics 61–397. In the text, identity models of several countries, namely India, France and Ireland are treated. 51 See eg Z Bauman, The Art of Life (London, Polity Press, 2008). 52 See JN Cunha Rodrigues, ‘Crise da lei e lei em tempo de crise’, lecture delivered at the School of Law of the University of Lisbon, 3 November 2009.

46  José Narciso da Cunha Rodrigues which had allegedly been pronounced ultra vires, ie in breach of the principle of conferral imposed by the EU legal system. The most common example is Mangold.53 The criticism of certain Member States relating to decisions considered ultra vires appears to be simply monitoring reactions on the ‘orthodoxy’ of the EU’s case law. In the unlikely event of non-compliance by Member States, the EU would have appropriate means to intervene which, ultimately, would lead to a political solution. In this scenario, how will the apparent tension between the constitutional courts of certain Member States and the ECJ come to an end? The valorisation by the Court of elements of identity with no constitutional nature, as justifications, means that it is highly unlikely that some day the Court will no longer take into account the principles of identity protected by the Constitutions. On the other hand, the Charter offers a safeguard by integrating and almost always exceeding the demands of the Member States’ Constitutions.54 Moreover, the preamble to the Charter draws attention to national identity. Even if a change in the Court of Justice’s case law is not foreseeable, it would be realistic to expect an evolution which would consider the creative concepts of inter normativity and inter constitutionality from Gomes Canotilho,55 constitutive pluralism, from Poiares Maduro,56 or ordained pluralism from Mireille Delmas‑Marty.57 The truth is that Taricco II showed no perspective of evolution.58 At issue was a preliminary ruling from the Italian Constitutional Court concerning the interpretation of Article 325(1) and (2) TFEU as adopted by the judgment of 8 September 2005 in Taricco and others. The Italian Constitutional Court expressed doubts as to whether the approach stated in Taricco judgment was compatible with the overriding principles of the Italian constitutional system and with observance of the inalienable individual rights. It was expected that the ECJ would express some considerations about constitutional identity. Indeed, in its order for reference, the Constitutional Court stated that Article 4(2) TEU allows the national court to disregard the obligation laid down by the Court in the Taricco and others judgment, in so far as that obligation breaches an overriding principle of its constitutional system and, consequently, is capable of affecting the national, and in particular, the constitutional identity of the Italian Republic. The referring court emphasised that EU law and the Court’s interpretation cannot be regarded as requiring the Member Sate to abandon the overriding principles of its constitutional system, which define its national identity.

53 See Case C-144/04 Werner Mangold v Rüdiger Helm EU:C:2005:709. The decision concerned the principle of non-discrimination on grounds of age in employment matters and was referred to by a German court. 54 See V Moreira, Respublica’ europeia: Estudos de Direito constitucional da União Europeia (Coimbra, Coimbra Editora, 2014) 138. 55 JJ Gomes Canotilho, ‘Estado de Direito e Internormatividade’, in A Silveira (ed), Direito da União Europeia e transnacionalidade (Lisbon, Quid Juris, 2010) 171 ff, and ‘Brancosos’ e interconstitucionalidade, itinerários dos discursos sobre a historicidade constitucional (Coimbra, Almedina, 2006) 265. 56 M Poiares Maduro, ‘Constitutional pluralism as the Theory of European constitutionalism’, in F Alves Correia et al, Estudos em homenagem ao Prof Doutor José Joaquim Gomes Canotilho (Studies in honor of Prof Dr José Joaquim Gomes Canotilho) (Coimbra, Coimbra Editora, 2012). 57 M Delmas‑Marty, Le pluralisme ordonné. Les forces imaginantes du droit (Paris, Seil, 2006). 58 See Case C-42/17 MAS and MB EU:C:2017:936 (Taricco II).

National Identity and European Construction  47 Advocate General Bot proposed, in his Opinion,59 that the Court should not deny the need to have regard to the national identity of the Member State of which constitutional identity certainly forms a part. The Advocate General pointed out his conviction that the EU is required, as TEU Article 4(2) provides, to respect the national identity of the Member States, ‘inherent in their fundamental structures, political and constitutional’. Consequently, he stated, ‘a Member State which considers that a provision of primary law or secondary law adversely affects its national identity may challenge it on the basis of the rules laid down in Article 4(2) TEU’.60 Even so, Advocate General Bot did not consider that the Court was facing a similar situation in this case. Therefore, it was not a surprise that the Court of Justice stated that the national authorities and courts remain free to apply national standards of protection of fundamental rights, since the level of protection provided by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law were not compromised. The Court remained once more silent on the issue of the constitutional identity and decided the case strictly based on principles governing criminal proceedings. The case law analysed does not, however, exhaust the problems raised by the issue of national identity nor does it seem to be giving due attention to the transformations occurring in the cognitive process.61

V.  The Challenge of Defining National Identity What can be considered representative of the national identity, for example, of being B ­ ritish or Portuguese? It would be distressing to look for a definition. More useful would be to observe the specific social context. In Britain, since 2005, any foreign citizen who wishes to reside in UK has had to demonstrate ‘sufficient knowledge of life in UK’ and pass a test on ‘Life in United Kingdom’. The test has evolved since then and contains, besides relevant issues, other requirements that have at times caused humorous comment,62 since they correspond more to the daily life perception than to true elements of the identity of the host country. Regarding Portuguese national identity, apart from the topics already quoted, the answers would not be easy to find. If we use the literature as a mirror of empirical k­ nowledge, we can find some interesting suggestions. Three stages are often cited:63 —— the first stage would consist of the exaltation and dissemination of a national identity inspired in the notion of the Portuguese homeland;

59 Opinion of AG Bot in Case C-42/17 MAS and MB EU:2017:564. 60 ibid, paras 169–76. 61 See O Hamlak, T Kerikmãe and D Kozel, ‘Identité nationale et constitutionnelle dans la jurisprudence de la Cour de Justice’ (December 2017), www.researchgate.net/publication/322357720, accessed October 2018, pp 23 et seq. 62 See L Orgad, ‘“Us” and “Them”. Can we define national identity?’, https://Blog.Oup.Com/AuthorS/Liav, accessed August 2017. 63 E Cabral, ‘Outras fronteiras da literatura portuguesa’, carnets.web.ua.pt, accessed August 2017.

48  José Narciso da Cunha Rodrigues —— the second stage would correspond to the fading of the national identity in areas that prioritise other issues, namely interpersonal relationships; —— the third stage would be characterised by the recognition of the decline of national identity as a result of the colonial war, of the decolonisation and of the fragmentation of the identity also later challenged by the integration in Europe. I would add to this context Agostinho da Silva with his regressive vision of a fifth empire.64 And, in a more historical and political perspective, Antero de Quental with his portrait of Peninsular peoples’ identity in which the spirit of independence and an inventive genius emerge.65 In Brazil, as a post-colonial society, the question of identity is reflected also in literature, ranging from Pero Vaz de Caminha to writers as José de Alencar, Machado de Assis, Gilberto Freire, Sérgio Buarque de Holanda, José Cabral de Melo Neto, Rubem Fonseca and Lígia Fagundes Teles. The eruption of autonomist movements in a non-colonial context, of which Catalonia is an example, requires a re-evaluation of identity’s elements. These movements should not be seen as mere obstacles or challenges to European integration. They are, on the contrary, expressions of the diversity admitted by EU law and contributions to a correct understanding of national identity and its implications and limits. It would be inappropriate to speak of ‘Catalan ebullition’ or ‘good identity nationalism’66 as opposed to nation state unity founded on diversity. It is however true that the idea of nationalism can damage the sense of integration and identity in opposition to the objectives pursued by the EU Treaties. What about Brexit? Are we truly facing a national identity problem? As is well known, the tensions have multiplied in the EU and increased with the austerity and the crisis of the euro. At the epicentre of the reactions was the insufficiency of the European model, the superficiality of the political status of the EU and the lack of transparency of governance. The announcement of a referendum in the UK started as a political movement to discipline the party in power over what appeared to be the advantages of the EU but the existence of internal fractures was already evident. The reservations traditionally expressed by the UK in relation to many spheres of the EU are well-known. The relationship between this Member State and the EU has historically been characterised by a more existential than circumstantial tension. That means that Brexit is exploiting a historical legacy and a process of rupture produced by geostrategic conditions, by the accumulation of internal and European elements of disintegration, by the weakening of the capacity of political decisions makers and by fractures occurring in the cohesion of the EU and most of its Member States. The argument of national identity is, for these reasons, substantially rhetorical. The role of tradition in the institutions and in styles of life and the reticent look on the continental law do not substantiate identity factors that justify or strengthen the UK’s reasons. In any case, the exit of the UK from the EU would represent a significant loss for the EU, namely 64 See A da Silva, Dispersos (Lisbon, ICLP, 1988). 65 A Quental, Causas do Declínio dos povos peninsulares (Lisboa, Ulmeiro, 1996). 66 The expression comes from H Serraf, see article available in www.atlantico.fr/rdv/zone-franche/catalognebon-nationalisme-identitaire-3179680.html, accessed April 2018.

National Identity and European Construction  49 because of the importance that common law has acquired in the judicial decision-making process and in case law. I think, for all of the above, that the exegesis of the provisions on national identity opens perspectives on the relationship between respect for national identity and governance which are yet to be established in EU jurisprudence. It is caused by and a result of the tendency of the ECJ to exhaust the hermeneutic possibilities offered by previous EU law provisions and principles. In a sense, the epistemological paradigm by which the Court sought to decide cases in the light of the economic freedoms, leaving aside the application of fundamental rights, in particular in the realm of the rights protected by the European Convention on Human Rights, is now being answered.

VI.  Concluding Observations This historical approach reveals the existence of a relationship between national identity and fundamental rights that confirms the idea outlined above that the question of the highest level of protection calls now for a new perspective that requires a complex exegesis of the concept of national identity. In my view, the fact that the Court has not yet dealt with the notion of national identity – possibly motivated by the need not to contribute to the existing tensions – has a negative effect since it postpones the definition of a legal framework which would be necessary to dispel fears and misunderstandings that have been created between national identity and European integration.67 There is no tension between fundamental rights and economic freedoms. The harmonisation to be made is compatible with the hermeneutical method used in the EU legal system. From a certain perspective, it can even be said that fundamental rights have qualitatively transformed economic freedoms since they have: —— rooted rights in the EU’s legal culture; —— re-legitimised the principle of primacy of EU law; —— established a historical-cultural link between rights proclaimed in different times; —— applied civic, political, social, cultural and economic rights in an unified context, as demanded by a modern and pluralist democratic society; —— put the principle of equivalent protection at the service of the Union’s legal system and in inter-institutional dialogue.68 National identity is a true condition for an integration that respects diversity. Habermas used the concepts of post-nationalism and constitutional patriotism to advocate European integration that promotes the recovery of the political power of the Member States. For this author, constitutional patriotism, in contrast to classical patriotism, can avoid 67 I do not adhere to positions which see in these ellipses a light touch able to produce legal insecurity. See A Semov, ‘Une jurisprudence souple de la CJUE au respect de l’identité nationale (favourable ou défavorable) – quelles conséquences pour le juge national’ Étude nº 3, eub.eu/…/179459748. 68 See JN Cunha Rodrigues, ‘Os direitos fundamentais na Europa depois do Tratado de Lisboa’, lecture delivered in the Centre for Social Studies, Lisbon, July 2018.

50  José Narciso da Cunha Rodrigues tendencies of exclusion and oppression, bringing citizens closer to democratic p ­ rinciples and the rule of law.69 I think that EU citizenship should not be excluded from this objective. EU citizenship has a constitutional dimension and represents the transition from a status of the person as a recipient of the rules to a reference centre of the process of European construction. The EU legislator assumed this transformation in attaching to Article 21 TFEU an evolving clause or a progressive clause according to the plastic and dynamic character of that status. Some obstacles though still persist. The first obstacle has a methodological nature and finds expression in the analysis and discourse. Economic freedoms with their founding nature continue to influence the assessment and the resolution of issues whose origin and disciplinary scope are different from those which are typical of the markets and would therefore require other points of observation and perspective. In order to respond to these obstacles, it would be necessary, in Jo Shaw’s words, a critical reinvention of the language of the rights. Specifically, in the process of European integration, the concept of citizenship must be developed in the light of its dynamic, relational and negotiated nature resulting from the juxtaposition of different essential elements (identity, belonging, membership and rights).70 It is not surprising, therefore, that some decisions, based on classical notions of European law, such as restriction, have been interpreted in the context of citizenship.71 The reason is that, in fact, EU citizenship is destined to become, in various domains, the fundamental status of nationals of the Member States. In a certain sense, the common origin and destination of fundamental rights and citizenship are part of the same functional framework of values. National identity joined the category of fundamental rights insofar as it adds a protection that only appears to have as its object a universality of values, considering that its objective is actually the person with its individuality, its historical heritage, its sense of belonging and its lifestyle. It is in the scope of protection constituted by fundamental rights, EU citizenship and national identity that a productive perspective of speculation can be found without prejudice to the primary EU law. Any of these notions is imbued with a core of individual personality protection. Their articulation will avoid the risk of forgetting the inclusive dynamics that define the European Union as a Union of law.

69 See S Heine, ‘Jürgen Habermas et le patriotisme constitutionnel’, www.revue.politique.be/Jurgen-habermaset-le-patriotisme-constitutionnnel/, accessed in August 2018. 70 See JN Cunha Rodrigues, Entre a Europa das liberdades e a Europa da cidadania, Estudos jurídicos e económicos em honra do Professor Doutor António de Sousa Franco (Coimbra, Coimbra editora, 2006) 675 et seq. 71 It is namely the Case C-60/00 Carpenter EU:C:2002:434. See E Sharpston, ‘From Gebhard to Carpenter: Towards a non-economic European constitution’ (2004) 41 Common Market Law Review 773.

4 Nationality and Citizenship: Integration and Rights-Based Perspectives SÍOFRA O’LEARY

I. Introduction In December 1993, a small group of legal academics met in the Finnish university town of Turku to discuss the newly established citizenship of the European Union. At that time the legal meaning, content and effects of this legal status were largely unexplored and, in most quarters, either downplayed or ignored.1 To be a pioneer in most fields of EU legal research is a rare thing in what is now a very crowded field. In the early 1990s, given the transformative changes to the structure and competences of the EU resulting from the Treaty of Maastricht, it was not only possible, but highly advisable. It was in the pioneering field of EU citizenship that I had the good fortune, 25 years ago, to meet Allan Rosas, then a Professor at the Åbo Akademi University in Turku. It is perhaps no coincidence that, in the years which followed, both of us would lead the lives of EU citizens, working and residing in Member States other than those of our origin, experiencing first-hand or through family members the legislative, administrative and practical ins and outs of the status which we had previously met to analyse from a more abstract, legal perspective. It seemed fitting therefore to return to this subject in a compilation in honour of Allan. It is not possible to retrace here the different and sometimes complex strands of EU citizenship case law which have developed in the hands of the Court of Justice (ECJ) since then. Some of those strands were influenced by early judicial enthusiasm for the new status and resort to the available jurisprudential building blocks provided by the case law on the free movement of economic migrants.2 Others arguably resulted from the regulatory gap which followed the creation of a legal status in primary EU law in 1992, entailing certain directly effective rights, with secondary legislation designed to guide its practical application and implications only adopted a good 12 years later.3 Examples of more recent case law

1 The group met again in a swelteringly hot Turku in the summer of 1994 and a book followed, A Citizens’ Europe: In Search of a New Order, eds A Rosas and E Antola (Sage Publications, 1995). 2 See, for some of those building blocks, the ground-breaking decisions in Cases 293/83 Gravier v City of Liège EU:C:1985:69; 186/87 Cowan v Le Trésor public EU:C:1989:47 or C-357/89 Raulin EU:C:1992:87. 3 See examples of the early EU citizenship case law, developed with reference to Arts 20 and 21 TFEU – Cases C-85/96 Martínez Sala EU:C:1998:217; C-138/02 Collins EU:C:2004:172; C-184/99 Grzelczyk EU:C:2001:458 or C-413/99 Baumbast EU:C:2002:493.

52  Síofra O’Leary suggest that some of the early judicial enthusiasm for the status of EU citizenship has waned as the concrete legal, economic and even political implications of free movement detached from the exercise of an economic activity have became apparent.4 When the ECJ declared in 2000, in the case of Grzelczyk, that EU citizenship was ‘destined to be the fundamental status of nationals of the Member States’,5 it knew little of the wide variety of scenarios in which it and national courts would be called on to tackle EU citizenship questions over the next decade and a half. In that period intra-EU free movement would also become a reality as never before,6 the Charter of fundamental rights of the European Union (Charter) would be transformed into primary EU law, many EU citizens would be left reeling from the impact of the 2008 financial and sovereign debt crises, the question of mass migration would move centre-stage and, as the EU struggled to respond to rule of law challenges in some Member States, another one would choose to activate Article 50 TEU. In short, the free movement of persons – personified by the Polish plumber of the French and British referenda debates7 – would come to the fore in discussions regarding what EU membership entails, its impact on national spending and sovereignty, and what it signifies for ordinary men and women on the EU law equivalent of the common law Clapham omnibus. In this short piece, and given that I now work at a different European court, the ­European Court of Human Rights (ECtHR), to the one in which Allan has served for over 16 years, I propose to explore how these two European courts have broached questions relating to the acquisition and loss of nationality and the enjoyment of citizenship-type rights by non-nationals in a host state. Three important provisos are necessary. First, this is not an exhaustive study of EU citizenship. It is an unashamedly limited and even impressionistic review, based on a finite number of selected cases. I seek merely to step back and explore whether the legal approach and philosophy of the two European courts to questions of nationality, citizenship, allegiance and integration are similar or distinct. Secondly, the differences between the two courts and the legal orders of which they form a part are taken as a given. EU law on citizenship of the Union is composed of a complex web of primary EU

4 See eg Cases C-434/09 McCarthy EU:C:2011:277; Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja EU:C:2011:866, or C-333/13 Dano EU:C:2014:2358. For academic discussion, see D Thym, ‘When Union Citizens Turn into Illegal Immigrants: The Dano Case’ (2015) 40 EL Rev 249 or R McCrea, ‘Forward or Back: The Future of European Integration and the Impossibility of the Status Quo’ (2017) 23 ELJ 66. For a more general overview of the strands of EU citizenship case law just outlined, see N Nic Shuibhne, ‘Recasting EU citizenship as Federal Citizenship’, amongst others, in D Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (Cambridge, Cambridge University Press, 2017) 147, at 160 et seq. 5 Grzelczyk, cited above, para 31, which involved a French national studying, resident and engaged in part-time work in Belgium. 6 See the most recent statistics in E Fries-Tersch, T Tugran, L Rossi and H Bradley, 2017 Annual Report on ­intra-EU Labour Mobility, 2nd edn (European Commission, 2018), and discussion of the nature, extent and ­diversity of migration flows post-2004 in B Galgóczi, J Leschke and A Watt, ‘Intra-EU labour migration: flows, effects and policy responses’ (2011) ETUI Working Paper 2009.03, update spring 2011 www.etui.org/Publications2/­ Working-Papers/Intra-EU-labour-migration-flows-effects-and-policy-responses (accessed 14 November 2018), and G Engbersen, A Leerkes, P Scholten and E Snel, ‘The intra-EU mobility regime: Differentiation, stratification and contradictions’ (2017) 5 Migration Studies 337. 7 A study by King’s College London of UK media coverage prior to the 2016 Brexit referendum found that, during the 10-week campaign, of the 195 front-page lead stories on the referendum published by 15 national newspapers, 99 leads were devoted to the subject of migration. See M Moore and G Ramsey, ‘UK media coverage of the 2016 EU referendum campaign’ (Centre for the Study of Media, Communication and Power 2017), available at www.kcl.ac.uk/sspp/policy-institute/CMCP/UK-media-coverage-of-the-2016-EU-Referendum-campaign.pdf (accessed 14 November 2018).

Nationality and Citizenship: Integration and Rights-Based Perspectives  53 law and the Charter, a series of EU directives relating to free movement and residence rights and the right not to be discriminated against on grounds of nationality and what is now a large (albeit not always unidirectional) body of ECJ case law. On the basis of this complex web, which includes harmonised rules, EU citizenship seeks to confer on its beneficiaries some of the rights and the type of legal protection traditionally associated with state citizenship or nationality. It is a status which seeks to assimilate, at least to an extent, residents and nationals in a host Member State. That being said, possession of the nationality of an EU Member State remains the gateway to that legal status and the benefits it confers. In contrast, the obligation in Article 1 of the European Convention on Human Rights (ECHR) to ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’ has meant that there are few cases in which application of the latter could be limited to citizens or nationals of the High Contracting Parties.8 The ­Strasbourg Court, when it tackles questions relating to the acquisition and loss of nationality or the rights of individuals, more often than not pursuant to Article 8 ECHR, residing in a state of which they are not a national, is not called upon to engage with a similar, harmonised regulatory system. Instead, in accordance with its external supervisory role and, respecting the limits imposed both by international law and by the Convention principle of subsidiarity, the Strasbourg Court seized of a complaint will seek to determine whether, in their dealings with a given applicant in this domain, the respondent state has respected the minimum standards imposed by the ECHR. In Strasbourg case law on immigration, all non-nationals are ‘aliens’, whether they hail from EU Member States or not.9 Thirdly, I will use the terms citizenship and nationality interchangeably, although depending on context or the national legal system involved, they may not be coterminous.

II.  Acquisition and Loss of Nationality from an ECHR and an EU Perspective A.  ECtHR Case Law on Questions Relating to Nationality A ‘right to nationality’ similar to that in Article 15 of the Universal Declaration of Human Rights is not, according to well-established ECtHR case law, guaranteed by the ECHR.10 Nor is a right to renounce nationality or citizenship one provided by the Convention. For the

8 See, however, Art 3 of Protocol n° 4 to the Convention, which secures an absolute and unconditional freedom from expulsion for nationals. In Slivenko and others v Latvia (dec) [GC], no 48321/99, 23 January 2002, the Court held that the applicants’ nationality must be determined, in principle, with reference to national law (§ 77). As the applicants could not be regarded as Latvian nationals, pursuant to that law, Art 3 of Protocol n° 4 was held not to apply (§ 79). 9 See eg Case no 7841/14 Levakovic v Denmark, judgment of 23 October 2018. See, however, Case no 12313/86 Moustaquim v Belgium, judgment of 18 December 2011, § 49, where the ECtHR recognised that the preferential treatment given to nationals of the other Mmember States of the EU (then EC) was supported by an ‘objective and reasonable justification … as Belgium belongs, together with those States, to a special legal order’. 10 Art 15 of the Universal Declaration of Human Rights provides: ‘(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. See also Art 4(a) of the European Convention on Nationality, which was adopted on 6 November 1997 and entered into force on 1 March 2000 (Council of Europe Treaty Series no 166). For ECtHR case law, see Karassev and

54  Síofra O’Leary Strasbourg Court it would appear that nationality represents, to adopt the 1955 definition of the International Court of Justice in Nottebohm: a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.11

According to US Chief Justice Warren, a right to nationality is a ‘man's basic right for it is nothing less than the right to have rights’.12 As per Nottebohm, the right of states to settle questions relating to the acquisition of nationality or its conferral by naturalisation in accordance with their own legislation has been repeatedly confirmed by the ECtHR.13 However, as we shall see, the exercise of that competence can be subject in a given case to an arbitrariness and proportionality assessment. In Slivenko v Latvia, the ECtHR accepted that an applicant’s nationality had to be determined with reference to domestic law, but it also rejected the respondent government’s argument to the effect that that determination was exclusively down to national legislation. Thus, while there may be no right under the Convention to acquire or divest oneself of nationality, the Strasbourg Court has been and is confronted nevertheless by questions relating to its acquisition and loss, usually in the form of complaints lodged under Articles 6 or 8 ECHR, sometimes alone and sometimes in conjunction with Article 14. As regards Article 6 § 1 ECHR, the case law has been clear for some time. This article does not apply to proceedings regulating a person’s citizenship, as such proceedings do not involve either the ‘determination of his civil rights and obligations or of any criminal charge against him’ within the meaning of that provision.14 Complaints under Article 6 of the Convention relating to the alleged unfairness of proceedings leading to the revocation of nationality will thus be deemed incompatible ratione materiae, pursuant to Article 35 §§ 3 and 4 ECHR. In contrast, the ECtHR has not excluded the possibility that an arbitrary denial of nationality might, in certain circumstances, raise an issue under Article 8 ECHR, because of the impact which such a denial might have on the private life of the individual.15 ­Likewise, it has held that it cannot be excluded that an arbitrary refusal of a request to renounce c­ itizenship might in certain very exceptional circumstances raise an issue under

family v Finland (dec), no 31414/96, 12 January 1999 and Slivenko, cited above, § 77. For an overview of international law on statelessness see §§ 12–21 of the United Kingdom Supreme Court judgment in Secretary of State for the Home Department (Appellant) v Al-Jedda (Respondent), [2013] UKSC 62. 11 Nottebohm Case (Liechtenstein v Guatemala), judgment of 6 April 1955, ICJ Reports 1955, p 4, cited in Case no 44230/060 Petropavlovskis v Latvia, §38, 13 January 2015 and recently in the concurring opinion of Judges Lemmens and Bianku in Levakovic v Denmark, cited above, § 4. 12 Perez v Brownell, 356 US 44, 64 (1958). 13 Confirmed, moreover, in the European Convention on Nationality, cited above. 14 Case no 13325/87 S v Switzerland (dec), DR 59, 15 December 1988; Case no 47863/99 Šoć v Croatia (dec), 29 June 2000; Case no 9958/04 Borisov v Lithuania, 14 June 2011, § 116 and Case no 31098/10 Al Hamdani v Bosnia and Herzegovina, 7 February 2012, § 72. 15 Karassev, cited above; Slivenko, cited above, § 77 and Case no 8407/05 Savoia and Bounegru v Italy (dec), 11 July 2006. Case no 53124/09, Genovese v Malta, 11 October 2011 concerned a denial of citizenship. The Court held that even though the right to citizenship was not as such a Convention right and its denial in the applicant’s case did not give rise to a violation of Art 8, it considered that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that provision.

Nationality and Citizenship: Integration and Rights-Based Perspectives  55 Article 8 of the Convention.16 An Article 8 review is triggered because of the potential impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity.17 Of particular importance of late have been cases in which a respondent state has sought to revoke an individual’s nationality against that person’s will, often as a result of fraud or involvement in serious criminal or terrorist activities.18 In determining whether a revocation of citizenship is in breach of Article 8, the Court has addressed two issues: whether the revocation was arbitrary; and what the consequences of revocation were or would be for the applicant. As regards arbitrariness, the Court has had regard to whether the revocation was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees, and whether the authorities acted diligently and swiftly.19 As regards the consequences of any revocation, the question of possible statelessness will play an important role in the Strasbourg Court’s assessment in nationality cases,20 but it does not appear to be decisive.21 In addition, the Court will look at the residence rights and location of family members and whether, in the event that the applicant was no longer in the respondent state but had returned to his or her country of origin or another state whose nationality they possessed or intended to acquire, spouses or family members could visit or relocate there. Three recent cases, involving different factual constellations and different Convention articles, reveal the nature and extent of the ECtHR’s assessment. In Ramadan v Malta, the applicant, originally an Egyptian national, acquired Maltese nationality by reason of marriage. His acquired nationality was subsequently revoked when it was discovered that the marriage had been simulated for that purpose. By this time, however, he had remarried a Russian woman and had two children, both of whom were Maltese nationals. The Court held that loss of a nationality already acquired or born into could have the same (and possibly a bigger) impact on a person’s private and family life as the denial of ­recognition of the right to acquire nationality. As such, an arbitrary revocation of nationality could in

16 See Case no 46343/99 Riener v Bulgaria, §§ 153–54, 23 May 2006. 17 For emphasis on the identity-conferring aspect of nationality and citizenship, see Genovese v Malta, cited above, § 33; Case no 38816/07 Dadouch v Malta, 20 October 2010, § 47, or Case no 65192/11 Mennesson v France, 26 June 2014, § 97 (on the refusal to recognise the nationality rights of children born to a French couple of a surrogacy arrangement in the USA and where the children had a biological link with one of the French commissioning parents). The interpretation and application of the Mennesson judgment was the subject of the Court’s first advisory opinion from the French Court of Cassation, P16-2018-001, 10 April 2018. 18 In Case no 76136/12 Ramadan v Malta, 21 June 2016, § 85, the Court made no distinction between the right to acquire citizenship and the denial of recognition of such citizenship on the one hand and the loss of citizenship already acquired or born into. 19 Ramadan v Malta, cited above, §§ 86–89. The relevance of procedural safeguards to the assessment of arbitrariness means that the ECtHR will sometimes treat jointly an applicant’s substantive and procedural complaints under Art 8 ECHR. 20 Case no 42387/13 K2 v the United Kingdom (dec), 7 February 2017, § 62. 21 See Ramadan, cited above, § 56. For violations of Art 8 ECHR as a result of passports being invalidated, rendering the applicants effectively stateless, see, Cases no 7549/09 and 33330/11 Alpeyeva and Dzhalagoniya v Russia, 12 June 2018. In the context of the unlawful removal or erasure of applicants’ names from the civil register, meaning they did not possess any Slovenian identity documents and were left in a legal vacuum, see Case no 26828/06 Kurić and Others v Slovenia [GC], 26 June 2012. For the inability to regularise residence status due to the break-up of the predecessor state, see Case no 63311/14 Hoti v Croatia, 26 April 2018.

56  Síofra O’Leary certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. However, it found that there was no arbitrariness in the applicant’s case, not least because the applicant had had the possibility to defend himself in a procedure accompanied by the necessary procedural safeguards. In addition, the situation complained of came about as a result of the applicant’s fraudulent behaviour, and any consequences were to a large extent a result of his own choices and actions. As to the consequences of the impugned measure, the applicant was not threatened with expulsion not least because he appeared stateless and there had been no attempt to deprive his children of their nationality acquired at birth. Furthermore, he had not substantiated his claim that he had relinquished his Egyptian nationality or demonstrated that he would not be able to re-acquire it if indeed he had. In any event, the Court held that the fact that a foreign national had renounced his or her nationality did not mean in principle that the host state had the obligation to regularise his or her stay in the country. In K2 v the United Kingdom, the applicant, a naturalised British national, had left the United Kingdom in breach of his bail conditions after being charged with a public order offence. While he was out of the country, the Secretary of State for the Home Department made an order for him to be deprived of his citizenship on the grounds that such a measure would be conducive to the public good. In the Convention proceedings, the Court indicated that the standard of ‘arbitrariness’ was stricter than that of proportionality,22 but found on the facts of the case that the revocation of the applicant’s citizenship had not been arbitrary. The impugned decision had been ‘in accordance with the law’ and there was no evidence of any failure on the part of the Secretary of State to act diligently and swiftly. The necessary procedural safeguards had been in place regarding the applicant’s statutory right of appeal to the Special Immigration Appeal Tribunal (SIAC) and an out-of-country appeal to that body did not necessarily render a decision to revoke citizenship arbitrary. Indeed the SIAC had sought out independent and objective evidence in the closed national-security case and adopted particular caution in drawing inferences adverse to the applicant. As to the consequences of the revocation, the applicant was not rendered stateless by the decision to deprive him of his British citizenship as he was entitled to (and had since obtained) a Sudanese passport, he had left the respondent state voluntarily prior to the revocation decision and could be visited by his wife and children in Sudan, both of whom had also left the UK.23 The K2 decision is significant in view of the fact that in this case the Strasbourg Court had to address for the first time a deprivation of citizenship in relation to someone charged with involvement in terrorism, and based on national security considerations.24 As we shall see, this context is presenting itself with increasing frequency at domestic level and it forces national courts to grapple with legal questions in relation to national (constitutional) law,

22 K2, cited above, § 61. 23 K2, cited above, § 62. 24 See the applications in Case no 52273/16 Ghoumid v France, Case no 52285/16 Charouali v France, Case no 52290/16 Turk v France, Case no 52294/16 Aberbri v France and Case no 52302/16 Ait El Haj v France, communicated on 23 May 2017, which concern the decision to revoke the citizenship of the applicants in April 2015 following their conviction in 2007 for involvement in a conspiracy to prepare a terrorist act. The applicants contend in particular that the decision to revoke their citizenship infringed their right to identity (Art 8 ECHR). They also argue that the measure is a ‘disguised penalty’ aimed at punishing the acts of which they were convicted in 2007, contrary to Art 4 of Protocol No 7.

Nationality and Citizenship: Integration and Rights-Based Perspectives  57 the Convention and the Charter, although some appear to shy away from referring to the latter in particular. As the next case demonstrates, complaints relating to the acquisition and loss of nationality may also engage articles of the Convention other than Article 8. The applicant in Boudelal v France was an Algerian national, resident in France, where he had lived lawfully since 1967. His application in 2009 for French nationality by reinstatement was rejected on the ground, in particular, that he had links with ‘a movement responsible for violent actions and advocating a radical practice of Islam’.25 The French Court of Appeal considered that it was first and foremost the responsibility of the minister for naturalisations to give an assessment of the interest in granting naturalisation or reinstatement of French nationality to a foreigner who applied for it, and that in the context of the examination undertaken, the Minister was entitled ‘to take into account any unfavourable information received as to the applicant’s conduct’.26 Mr Boudelal complained that the domestic authorities had taken their decision on the basis that he was a campaigner for Palestinian and immigrant causes and argued that their refusal was contrary to Articles 9, 10 and 11 of the Convention. The Court, citing Petropavlovskis v Latvia,27 emphasised that both before and after the ­decision refusing him French nationality, the applicant was free to express his opinions, attend demonstrations and retain his association with the relevant organisation. French law did not confer an unconditional right to acquire French nationality but it did subject such acquisition to a demonstration of loyalty or allegiance which fell to be evaluated by the domestic authorities. At the same time, interested parties were protected from a risk of arbitrariness by the requirement on the latter to reason their decision and by the availability of a right to appeal.28 Again citing Petropavlovskis, the Court emphasised that the allegiance required of a nationality applicant was not towards the ruling government but rather towards the State itself and its Constitution.29 The applicant simply did not fulfil the conditions established by French law. Finally, as regards Article 14 ECHR, the Court has considered that in circumstances where a Member State has gone beyond its obligations under Article 8 in creating a right to citizenship by descent and has established a procedure to that end, that state consequently must ensure that the right is secured without discrimination within the meaning of Article 14 ECHR.30 In Biao v Denmark the applicant, a naturalised Danish national, was refused a residence permit for his Ghanaian wife, since their aggregate ties to Denmark were not considered stronger than their attachment to any other country, Ghana in their case. Domestic legislation provided an exception to this attachment requirement, but only for those who had been Danish nationals for 28 years. A majority in the Grand C ­ hamber found that the impugned measure regulating family reunification had an indirect discriminatory impact, in breach of Article 14 on grounds of ethnicity and nationality. The exemption was 25 Case no 14894/14 Boudelal v France (dec), 13 July 2017, §§ 5–8 (author’s own translation). 26 ibid, § 8 (author’s own translation). 27 Petropavlovskis v Latvia, cited above. The applicant was a ‘permanently resident non-citizen’ of the Republic of Latvia, a legal status granted to citizens of the former Soviet Union who had lost their Soviet citizenship following the dissolution of the USSR. While being so entitled, he had not subsequently obtained any other nationality. He complained under Art 10 of the Latvian State’s refusal to grant him nationality on the grounds that he was a leader of a protest movement against the Government’s language policy. The ECtHR found no violation. 28 Boudelal v France (dec), cited above, §§ 27–28. 29 ibid, § 29. 30 See Genovese, cited above, § 34.

58  Síofra O’Leary found to have a disproportionately prejudicial effect on persons, such as the first applicant, who had acquired Danish nationality later in life and was of ethnic origin other than Danish, compared to Danish-born nationals of Danish ethnic origin. According to the Grand Chamber, no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin was capable of being justified in a contemporary society, and a difference of treatment based on nationality was only allowed for ‘compelling or very weighty reasons’. Such reasons had not been demonstrated.31 The Biao judgment does not appear to suggest that differential treatment of persons who have acquired nationality at birth and those who have acquired it by naturalisation is excluded, but it does appear to require very substantial justification.

B.  EU Law, EU Citizenship and Questions Relating to Nationality Pursuant to EU law, every national of an EU Member State shall be a citizen of the Union.32 Citizenship of the Union is additional to and does not replace national citizenship.33 Concern in some Member States, particularly Denmark, about the consequences of this new, parasitic legal status for Member State competence as regards the granting and revocation of nationality led to the adoption at the intergovernmental conference leading to the Maastricht Treaty of a declaration on nationality of a Member State: … wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned.34

Yet soon after the February 1992 declaration it became clear that the statement it contained did not necessarily provide a complete picture under EU law of Member State competence as regards nationality questions. It was and is an established principle of EU law that even where Member States retain competence in a particular field, they must exercise that competence with due regard to the objectives of the EU and EU law.35 This principle was central to a free movement case called Micheletti, which arose when the Spanish nationality 31 See, however, in Case no 38590/10 Biao v Denmark, 24 May 2016, several dissenting opinions contesting the grounds of discrimination recognised by the majority – ethnic origin – and the methodology applied. They argue that little or no room was left to the respondent Government to justify the differential treatment complained of or attempt to demonstrate its proportionality. 32 See Arts 9 TEU and 20 TFEU, as well as the Preamble of the TEU which states that the signatories are ‘resolved to establish a citizenship common to nationals of their countries’. 33 This statement was first made in 1992 in the Edinburgh Declaration of the Heads of State and Government (see further below). It was later incorporated into the Treaties by the Treaty of Amsterdam. 34 Declaration no 2 annexed to the Maastricht Treaty [1992] OJ C191/98 (emphasis added). See later the ­Edinburgh Declaration on citizenship of the Union by the Kingdom of Denmark, issued following the Edinburgh IGC convened on 11–12 December 1992 to discuss, inter alia, the consequences of the negative result in the Danish referendum on the Maastricht Treaty. 35 See, eg, on the regulation and registration of civil status, which are matters coming within the competence of Member States, Case C-148/02 Garcia Avello EU:C:2003:539 or Case C-541/15 Mircea Florian Freitag EU:C:2017:432, para 33, and the case law cited therein. Other examples of case law applying this principle can be found in Case C-135/08 Rottmann EU:C:2010:104, para 41, or, as regards organisation of the Member States’ judicial systems, Case C-619/18 Commission v. Poland, EU:C:2019:531, para 52: “by requiring the Member States thus to comply with [their obligations deriving from EU law], the [EU] is not in any way claiming to exercise that competence itself nor is it, therefore, […] arrogating that competence”.

Nationality and Citizenship: Integration and Rights-Based Perspectives  59 of a dual Argentine-Spanish national was refused recognition by Italy, the EU Member State in which the applicant wished to establish himself as a dentist on the basis of EU free movement rules.36 In its judgment, handed down in July 1992, the ECJ held that: Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.37

It went on to hold that this conclusion was reinforced by the fact that the consequence of allowing Member States to subject enjoyment of the fundamental freedoms to additional conditions not provided by the Treaties would be that the class of persons to whom the EC rules were applied might vary from one Member State to another.38 Unsurprisingly, since the possession of Member State nationality is the gateway to the rights which EU citizenship confers, Micheletti proved to be the beginning rather than the end of this story. In Rottmann, handed down in 2010, the Court confirmed that when Member States exercise their powers in the sphere of nationality, they must have due regard to EU law.39 Crucially, the applicant’s case had been found to come within the ambit of EU law, such that this ‘with due regard’ rule was triggered. According to the ECJ, a decision withdrawing naturalisation from an EU citizen, which would place him, given that he had lost the nationality of his Member State of origin when he naturalised, in a position of statelessness, causing him to lose the status conferred by Article 20 TFEU and the rights attaching thereto, fell ‘by reason of its nature and its consequences’, within the ambit of EU law.40 Thus, the exercise of Member State power in relation to the acquisition and loss of nationality, in so far as it affected the rights conferred and protected by the EU legal order, was amenable to judicial review carried out in the light of EU law and could be subject, in particular, to a proportionality assessment. Like the Strasbourg Court, the ECJ in Rottmann identified what it saw as the core of nationality, namely: a special relationship of solidarity and good faith between [a State] and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.41

While the ECtHR may, in Article 8 cases like Genovese and Ramadan, broach nationality as an issue relating to personal or social identity, something not reflected in the ECJ’s reasoning in Rottmann, the essential similarities between the assessment undertaken pursuant to the Convention and under EU law are striking. Both are based on an evaluation of

36 Case C-369/90 Micheletti EU:C:1992:295. 37 ibid, para 10 (emphasis added). While AG Tesauro cited the 1992 declaration, the ECJ made no reference to it. 38 ibid, para 12. See also, following Micheletti, Cases C-179/98 Mesbah EU:C:1999:549, para 29; C-192/99 Kaur EU:C:2001:106, para 19 and C-200/02 Zhu and Chen EU:C:2004:639, para 37, where, on each occasion, the ECJ held that it is for each Member State, having due regard to EU law, to lay down the conditions for the acquisition and loss of nationality. 39 Rottmann, cited above, para 39. 40 ibid, para 42. In Rottmann it is worth stressing that the applicant’s loss of his German nationality of origin was by operation of law. His potential statelessness thus derived from the withdrawal of his naturalized Austrian nationality due to its acquisition by fraud combined with the prior automatic loss of his nationality of origin due to that naturalisation. 41 ibid, para 51.

60  Síofra O’Leary consequences and a consideration of whether there has been any arbitrariness. Possible statelessness is a relevant, even weighty, consideration but it does not appear, in all cases, to be a decisive one. In Rottmann, the ECJ referred to Article 7(1) and (3) of the European Convention on Nationality, which does not prohibit a State Party from depriving a person of his nationality, even if he thus becomes stateless, when that nationality was acquired by means of fraudulent means and the reference to the general principle of international law that no one is arbitrarily to be deprived of his nationality, that principle being reproduced in Article 15(2) of the Universal Declaration of Human Rights and in Article 4(c) of the European Convention on Nationality. In addition, it required an assessment of the consequences of any revocation decision for the situation of the person concerned ‘in the light of EU law’.42 It is not clear, at the time of writing, how the United Kingdom’s Article 50 TEU withdrawal will play out. However, one could wonder how some of the qualifying clauses in Rottmann,43 or the essence of the Ruiz Zambrano jurisprudence which followed hot on the heels of Rottmann, might be used by lawyers in cases brought by any one of the 58 million British nationals who might complain that their acquired rights will be affected by the withdrawal of their state from the EU, or by EU migrants who will remain EU citizens but resident in a state which is no longer an EU Member State. For the former category, while Member State nationality is a condition for the acquisition of EU citizenship, the question may become whether it is also a necessary condition for the retention of that status or all the rights it confers. In February 2017 the Amsterdam District Court referred just such a question, but the request for a preliminary ruling was subsequently withdrawn by the Amsterdam Appeal Court on the grounds that it was premature and speculative. However, it seems likely that legal questions relating to the status and rights of EU citizens – existing and former – and calling for judicial intervention could follow a Member State’s withdrawal from the EU. The form those questions take would depend on the terms of the withdrawal agreement and the manner in which it was implemented. In the UK context, specific questions relating to the rights of EU citizens of joint Irish/British nationality resident in Northern Ireland cannot be excluded. At the time of writing, the draft withdrawal agreement negotiated by the EU and the UK recognises that Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship.44

So the terms of the withdrawal agreement would be crucial, but so too would the legal principles, established, teased out and tested over decades in ECtHR case law on Article 8 42 See, ibid, paras 52–53 and 55–56. 43 In Rottmann the ECJ concluded that: ‘considerations on the legitimacy, in principle, of a decision withdrawing naturalisation on account of deception remain, in theory, valid when the consequence of that withdrawal is that the person in question loses, in addition to the nationality of the Member State of naturalisation, citizenship of the Union’, para 54 (emphasis added). 44 See the preamble of the Protocol on Ireland/Northern Ireland annexed to the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on 14 November 2018, TF50 (2018) 55 – Commission to EU27 (emphasis added). To give one example, what rights, if any, to vote in European Parliament elections will Irish/British citizens resident in Northern Ireland enjoy?

Nationality and Citizenship: Integration and Rights-Based Perspectives  61 and beyond.45 As the ECJ has already emphasised in the context of Brexit, the UK is a party to the ECHR, and its continuing participation in that Convention is in no way linked to its membership of the EU.46 In short, the Convention is and remains a ‘backstop’. That the CJEU is preparing itself for future questions could be inferred from its statement in ­Wightman, the Article 50 withdrawal case, to the effect that It must also be noted that, since citizenship of the Union is intended to be the fundamental status of nationals of the Member States … any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all Union citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States.47

It is worth pausing to consider, given the role which Member State nationality has played in EU law as a precondition of access or entitlement to other rights and privileged legal protection, how infrequently the ECJ has expressly addressed the personal, social and legal significance of nationality and citizenship. In early free movement cases on the public service derogation in Article 45(4) TFEU, it explained the rationale behind the derogation in the following terms: Such [public service] posts in fact presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality.48

This reference to allegiance reminds us again of the ECtHR judgments in cases like ­Petropavlovskis and Boudelal but, as just indicated, it is one which has, until recently, been tackled by the ECJ almost exclusively in a small body of cases on the public service employment derogation. Beyond this narrow field, Rottmann represents a rare example of a reference to the reciprocity of rights and duties which the ECJ regards as forming the ‘bedrock of nationality’. It is noteworthy that the draft withdrawal agreement just referred to points not just to the rights which one associates with EU citizenship but also to the identity which it is said to bestow on beneficiaries. As we shall see in section III below, more developed consideration of questions touching on allegiance, integration and social contract are emerging as the case law on EU citizenship develops, particularly case law relating to when it may be justified to expel an EU citizen from a host Member State, thereby 45 For discussion of Brexit, the joint report to the Council setting out the basis for the future withdrawal agreement, questions raised in the withdrawn Dutch reference and related issues, see Oliver Garner, ‘Does Member State Withdrawal from the EU Extinguish EU Citizenship? C/13/640244 / KG ZA 17-1327 of the Rechtbank Amsterdam (“The Amsterdam Case”)’ (European Law Blog, 19 February 2018) europeanlawblog.eu/2018/02/19/ does-member-state-withdrawal-from-the-european-union-extinguish-eu-citizenship-c13640244-kg-za17-1327-rechtbank-amsterdam-the-amsterdam-case/ (accessed 14 November 2018); G Davies, ‘The State of Play on Citizens’ Rights and Brexit’ (European Law Blog, 6 February 2018) europeanlawblog.eu/2018/02/06/the-stateof-play-on-citizens-rights-and-brexit/ accessed 14 November 2018; R McCrea, ‘Brexit EU Citizenship Rights of UK Nationals and the Court of Justice’ (UK Const L Blog, 8 February 2018) ukconstitutionallaw.org/2018/02/08/ronanmccrea-brexit-eu-citizenship-rights-of-uk-nationals-and-the-court-of-justice/ (accessed 14 November 2018) and Guayasén Marrero González, ‘Brexit’ (2016) 23 MJECL 796. 46 See Case C-327/18 PPU RO EU:C:2018:733, para 52. 47 Case C- 621/18 Wightman and others v Secretary of State for Exiting the European Union, EU:C:2018:999, § 64. 48 Case C-149/79 Commission v Belgium EU:C:1980:297, para 10. Art 45(4) TFEU provides that the provisions of that article shall not apply to employment in the public service. In Case C-47/02 Anker EU:C:2003:516, para 26, the ECJ saw the bond of nationality as the means to specifically safeguard the special relationship of allegiance to the State on the part of a given person.

62  Síofra O’Leary limiting e­ njoyment of one of the rights – the right of free movement and residence – which the status confers.49 In Rottmann, the necessary connecting factor which brought the case within the ambit of EU law resided in the nature and consequences of the situation complained of, namely the risk of loss of EU citizenship as a result of loss of Member State nationality acquired by naturalisation. In Lounes a variation of the same connecting factor was relied on.50 In this case it was the acquisition by a Spanish national of Member State nationality in the host Member State to which the applicant had moved when exercising her free movement rights as an EU citizen which was liable to entail the loss of the rights which she had previously enjoyed as a ‘free mover’ under Directive 2004/38.51 Those rights included the derived right of her third country national spouse to reside with her in the United Kingdom, her chosen Member State of residence. However, by acquiring British nationality, albeit retaining her Spanish one, the applicant had placed herself outside the personal scope of the 2004 directive, whose objective was to regulate free movement but not residence in a state in which she had since acquired nationality. The ECJ, as it is increasingly wont to do, found a solution in the need to guarantee the ‘effectiveness’ of primary law on EU citizenship. According to that Court, rights conferred on an EU citizen by Article 21(1) TFEU are intended, amongst other things, to promote the gradual integration of the EU citizen concerned in the society of the host Member State. It ruled that it would be contrary to the underlying logic of that gradual integration to deprive the applicant – who had sought to become more deeply integrated into her host society by naturalising – of a right she would have enjoyed if she had merely remained Spanish and been lesser integrated. According to the Advocate General, the decision to naturalise was proof of the applicant taking her integration in the host Member State to its logical conclusion. However, the family unit which the applicant was seeking to protect by relying on the more favourable rights conferred on EU citizens by EU law compared to those which would normally have applied to her as a (naturalised) British citizen had been formed long after her arrival in the host Member State and long after naturalisation. In addition, for all that Lounes may appear a very protective, and indeed laudable, solution in an individual case, it accentuates the reverse discrimination with which EU law has thus far failed to deal. The applicant’s EU citizenship, as interpreted by the ECJ, conferred on her not rights equal to those enjoyed by her fellow UK nationals, but more favourable ones. Furthermore, the judgment could be read as reducing EU citizenship to a mere vehicle for the protection of the rights of ‘free movers’. Yet it is important not to lose sight of the fact that, among nationals of EU Member States of working age, only 3.8 per cent reside in a Member State other than their Member State of origin.52

49 See below for discussion of cases like Case C-378/12 Onuekwere EU:C:2014:13 or Joined Cases C-316/16 and C-424/16 B v Land Baden Württemberg and Secretary of State v Vomero EU:C:2018:256. 50 Case C-165/16 Lounes EU:C:2017:862. 51 European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77. 52 See Statistics Explained, ‘EU citizens living in another Member State – Statistical overview’ (Eurostat, April 2018) ec.europa.eu/eurostat/statistics-explained/index.php?title=EU_citizens_living_in_another_Member_State_-_ statistical_overview, accessed 14 November 2018. A free movement case involving the Turkish A ­ ssociation Agreement demonstrates a similar logic to that followed in Lounes, cited above. The Kahvici case (Joined

Nationality and Citizenship: Integration and Rights-Based Perspectives  63 Furthermore, EU citizenship case law appears neither linear nor entirely coherent when it comes to the rights of EU citizens who have naturalised in their host Member State. In Ymeraga, a Kosovan national by birth, who had naturalised in Luxembourg but who was still a minor, sought to rely on his rights to family reunification as an EU citizen in order to benefit his third country national family members.53 However, as he was a static EU citizen who had never lived or resided outside his EU Member State of nationality, neither he nor his family members fell within the scope of Directive 2004/38. Nor could Directive 2003/86 apply to the family members of an EU citizen.54 Moreover, this minor EU citizen did not fall within the Ruiz Zambrano line of case law. Refusing to confer residence rights on his third country national family members would not have had the effect of denying him ‘the genuine enjoyment of the substance of the rights conferred by virtue of his status as citizen of the Union’.55 Since both the applicant and his family members fell between the cracks of the different possible provisions of EU law conferring rights to family reunification, their situation did not fall within the scope of EU law, and no Charter review of the conformity of the national authorities’ decision could thus be triggered. His recourse was to the ECHR, a Convention to which, the ECJ noted, all Member States are parties. EU legal protection, as we saw in Lounes, seems to be the consequence of free movement, the effectiveness of which must be protected. In the absence of any such movement, applicants may instead fall within the McCarthy56 or Ymeraga lines of case law. Returning to the ECtHR and ECJ case law on acquisition and loss of nationality, one has glimpses both of the difficulties which some national courts appear to encounter when trying to handle EU law’s foray into nationality law and the relative ease with which others seem to proceed, if only because they skirt around Rottmann. In G1 v Secretary of State for the Home Department, the Court of Appeal stated that the conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation state, and implied that if the ECJ in Rottmann had sought to be the judge of any procedural conditions governing such matters, so that its ruling was to apply in a case with no cross-border element, then such a decision appeared ultra vires the terms of the UK’s accession.57 These doubts about Rottmann were repeated, albeit in somewhat softer terms, by the UK Supreme Court in Pham.58 However, neither UK court seemed willing to grasp the well-established principle of EU law on which Rottmann was based – that in cases which come within the

Cases C-7/10 and C-9/10, EU:C:2012:180) concerned the residence rights of the family members of a Turkish worker who had since become a naturalised German citizen while retaining his original Turkish nationality. The general objective pursued by the EU-Turkey Association Agreement is to improve, in the social field, the treatment accorded to Turkish workers and members of their families with a view to achieving gradually freedom of movement. It puts in place a system intended to create conditions which will promote family reunification in the host Member State. The Court held that that aim would be impeded if acquisition of the nationality of the host Member State were to require a worker who retains Turkish nationality to forgo the benefit of the conditions which promote family reunification in the host Member State. 53 Case C-87/12 Ymeraga EU:C:2013:291. 54 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12. 55 See Cases C-34/09 Ruiz Zambrano EU:C:2011:124; Ymeraga, cited above, para 39. 56 McCarthy, cited above, paras 54–55, where the situation of a dual British/Irish national who resided in the UK and had not availed of her free movement rights was held not to demonstrate a factor linking it with any of the situations governed by EU law. 57 G1 v Secretary of State for the Home Department [2012] EWCA Civ 867. 58 Pham v Secretary of State for the Home Department [2015] UKSC 19.

64  Síofra O’Leary scope of EU law the exercise by Member States of their competence must pay due regard to EU law – and the fact that the establishment of EU citizenship meant that what constituted purely internal situations had inevitably altered. The ambit of EU law in this field is no longer delineated solely by cross-border movement, albeit, for the reasons stated above, such movement remains important. This point emerged from the ECJ’s decision not to follow the reasoning of its Advocate General in Rottmann, but also transpires in subsequent cases like Ruiz Zambrano, McCarthy, Chavez-Vilchez and, perhaps with particular clarity, Delvigne.59 In the UK, in a decision dating from 2013, the Upper Tribunal seemed to have had less difficulties understanding the import and effects of both Rottmann and Ruiz Zambrano than did the hierarchically superior UK courts.60 In France, the chosen response to ECJ case law on loss of nationality seems to have been silence rather than resistance. Ahmed S was a case referred to the Conseil Constitutionnel by the Conseil d’État under the priority constitutionality question procedure (QPC), concerning a dual Moroccan and French naturalised citizen, whose French nationality was being revoked due to his involvement in terrorist offences.61 The Constitutional Court found the French provision constitutional, refused to refer a preliminary reference q ­ uestion to the ECJ relating to the differential treatment of naturalised citizens and those who had acquired nationality at birth, and made no reference to Rottmann. While no question of statelessness as a consequence of the revocation arose in that case, the loss of French nationality did entail the loss of EU citizenship and the rights it entails. This simply did not feature in the analysis.62 The approach of the Belgian Constitutional Court in its recent judgment in Belkacem is something of a halfway house between the UK courts’ denial of any EU law scope or jurisdiction and the French court’s silence on the matter.63 The applicant was convicted by the Antwerp Court of Appeal in 2016 for, inter alia, leadership of a terrorist organisation. The public prosecutor subsequently initiated proceedings on the basis of Article 23, §1, 2° of the Belgian Nationality Code, which provides for the possibility of revoking the Belgian nationality of someone not born with this nationality who committed serious crimes. Like the applicant in the French QPC case, the applicant in the Belgian case also possessed the nationality of a non-EU state. Statelessness was thus not an issue. The Antwerp Court of Appeal submitted preliminary questions to the Constitutional Court concerning the allegedly discriminatory conditions for the revocation of nationality, whether the revocation

59 Case C-133/15 Chavez-Vilchez EU:C:2017:354 and Case C-650/13 Delvigne EU:C:2015:648. In Delvigne, asserting its jurisdiction in the case, the ECJ recognised (paras 31–33) that, as EU law currently stands, the definition of the persons entitled to exercise the right to vote in European Parliament elections falls within the competence of each Member State. However, when exercising that competence the Member States are bound to ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret. This led the Court to conclude that where a Member State decides to exclude from the right to vote EU citizens convicted of a criminal offence, it must be considered to be implementing EU law within the meaning of Art 51(1) of the Charter. 60 See Deliallisi [2013] UKUT 439. 61 Decision no 2014–439 QPC of 23 January 2015. 62 One distinguishing factor between Rottmann and Ahmed S was the interplay of two EU Member State nationalities in the first case, compared to the interplay between the nationality of an EU Member State, acquired by naturalisation, and that of a third state, in the second. If this distinction was relevant to the French court’s reasoning, it was not explicitly addressed. The applicant in that case later brought a case to the ECtHR claiming that his expulsion to Morocco would constitute a violation of Art 3 of the Convention: AS v France, no 46240/15, 19 April 2018. 63 See judgment no 16/2018 of the Belgian Constitutional Court of 7 February 2018.

Nationality and Citizenship: Integration and Rights-Based Perspectives  65 decision had to be assessed in the light of the principle of non bis in idem, and whether the Belgian provision on revocation violates the right to respect for private and family life as enshrined in the Constitution, the Convention and the Charter. The Constitutional Court found no violation but did not analyse the questions from the perspective of EU law, despite the loss of EU citizenship, preferring instead to include some references to case law of the ECtHR.64 More recently, in Ireland, the Supreme Court granted leave to appeal against a Ministerial decision refusing approval of the appellant’s application for citizenship on grounds of national security. One of the questions addressed was whether the Charter governs the application for and refusal of citizenship by the competent Minister.65 For some commentators, the judgment of the ECJ in Rottmann had been limited to the EU law consequences of the revocation of Member State nationality.66 The Irish Supreme court agreed: “there is nothing in Rottmann which suggests that Union law has any role in the decision to grant citizenship as apposed to its removal”. At the time of writing, legal questions relating to the return to their EU Member States of origin of ISIS operatives, their (teenage) brides and children are in the news daily.67 The withdrawal of nationality, whether acquired through naturalisation or by birth, appears to be assuming a significant place in some national antiterrorism policies, a fact which is widely debated.68

III.  Enjoyment of Citizenship-Type Rights as per Strasbourg and Luxembourg Case Law I will concentrate, given the potential breadth of this aspect of the topic, on the right to reside in a given state, a right which the ECJ has identified repeatedly as being one of the core rights conferred by EU citizenship. The point of departure for Strasbourg case law under Article 8 ECHR is clear. A non-national or ‘alien’ does not have a Convention right to reside in a particular state. This highlights a fundamental distinction between the Convention system and the rights of EU citizens pursuant to EU law. The Strasbourg Court has repeatedly held that a state is entitled, as a matter of international law and subject to its 64 In para A.2.4.3 of the Belkacem judgment the Council of Ministers argued that EU law did not apply in the case, that nothing could be derived from the Rottmann judgment given that in the latter case the loss of nationality led to statelessness and, in any event, that nothing in the Rottmann judgment suggested that EU law would preclude the revocation of nationality in a case such as that referred. 65 See AP v Minister for Justice and Equality [2019] IESC 47. On the relevance of the Art 41 Charter principle of good administration in the context of citizenship applications see previously Mallack v ­Minister for Justice, Equality and Law Reform [2012] IESC 59. Note also the ongoing proceedings in the Irish High Court in Ali Charaf Damache v Minister for Justice and Equality, where the applicant, an Algerian/Irish national, is challenging, with reference to EU law and the ECHR, the decision of the competent Minister to deprive him of his Irish nationality, acquired by naturalisation, following his conviction for terrorist activities in the United States (reported in the Irish Times, 19 January 2019). 66 See paras 42, 48 and 49 of the Rottmann judgment and, for detailed discussion, J Shaw (ed), ‘Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?’ (2011) EUI Working Papers RSCAS 2011/62, cadmus.eui.eu/bitstream/handle/1814/19654/RSCAS_2011_62.corr.pdf?sequence=3&isAllowed=y, accessed 14 November 2018. 67 https://ukhumanrightsblog.com/2019/02/25/the-round-up-begum-knife-crimes-tamil-tigeres-and-­ disability-discrimination/. 68 See, for example, M Steinbeis, ‘Our own people’, https://verfassungsblog.de/our-own-people/.

66  Síofra O’Leary treaty obligations, to control the entry of aliens into its territory and their residence there.69 In contrast, by virtue of their nationality and the accession of their Member State to the EU, all EU Member State nationals, now EU citizens, enjoy a directly effective right to move and reside within the EU. This right may be subject to limitations and conditions and, for the nationals of newly acceded Member States, may also be subject to detailed transitional arrangements. In addition, the degree of protection afforded by EU law will vary depending on the category of EU citizen into which a given Member State national is deemed to fall, the length of their residence and the degree to which they have integrated. The rights of static EU citizens, those who move in search of work, those who are economically active or self-sufficient, those who study, retire etc are all determined with reference to the complex web of EU legal provisions mentioned in the Introduction. For third country nationals not related to EU citizens, a separate legal framework has developed since the gradual expansion of EU legislative competence in the fields of asylum and immigration following the Treaty of Amsterdam.70 This fundamental distinction could suggest that any comparison between Strasbourg case law on Article 8 ECHR and EU case law on the rights of EU citizens is destined to point to multiple differences rather than recurring similarities. However, I propose to look at established Strasbourg case law and some more recent ECJ case law touching principally on the expulsion of EU citizens from host Member States to test whether this is the case.

A.  Strasbourg Case Law under Article 8 ECHR on Rights to Enter and Reside Article 3 of Protocol No 4 ECHR secures an absolute and unconditional freedom from expulsion of a state’s own nationals. This principle of international law is oft-repeated in ECtHR case law and has also featured in that of the ECJ.71 As regards non-nationals, the ECtHR has consistently held that it is a legitimate objective for Contracting Parties to control ‘as a matter of well-established international law … the entry, residence and expulsion of aliens’. As indicated previously, the Convention does not guarantee the right of an alien to enter or to reside in a particular country. Contracting States have the right to control immigration and, in pursuit of their task of maintaining public order, they also have the power to expel an alien due to his irregular immigration status or following conviction for serious or repeated criminal offences. However, their

69 See, among many other authorities, Case nos 9214/80, 9473/81 and 9474/81 Abdulaziz, Cabales and ­Balkandali v The United Kingdom, 28 May 1985, § 67 and Case no 25404/94 Boujlifa v France, § 42, 21 October 1997. 70 See, in particular, Directives 2003/86, cited above, and 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44. 71 See, McCarthy, cited above, para 29: ‘the Court has also held that a principle of international law, reaffirmed in Article 3 of Protocol No 4 to the [ECHR], that European Union law cannot be assumed to disregard in the context of relations between Member States, precludes a Member State from refusing its own nationals the right to enter its territory and remain there for any reason (see Case 41/74 van Duyn EU:C:1974:133, paragraph 22, and Case C-257/99 Barkoci and Malik EU:C:2001:491, paragraph 81); that principle also precludes that Member State from expelling its own nationals from its territory or refusing their right to reside in that territory or making such right conditional (see Cases C-370/90 Singh EU:C:1992:296, paragraph 22 and C-291/05 Eind EU:C:2007:771, paragraph 31)’. See also Case C-33/07 Jipa EU:C:2008:396 on refusal of exit.

Nationality and Citizenship: Integration and Rights-Based Perspectives  67 ­ ecisions in this field must, in so far as they may interfere with a right protected under d Article 8 § 1, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.72 Depending on a given case, the ECtHR will focus on the family or private life aspects of Article 8 ECHR. It is accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8. In order to assess whether an expulsion order can be considered necessary in a democratic society and proportionate to the legitimate aim pursued under Article 8 of the Convention, the Court has laid down the relevant criteria in a series of cases. If an individual is being expelled on public order or public security grounds, the ECtHR and in the first instance domestic authorities and courts, must look at the nature and seriousness of the offence committed; the length of the applicant’s stay; the time elapsed since the offence was committed and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of a marriage, and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children from the marriage and, if so, their age; the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled; the best interests and wellbeing of the children, and the solidity of social, cultural and family ties with the host country and with the country of destination.73 Some of these criteria will of course not be considered relevant where the person to be expelled has not yet founded a family of his or her own. In all cases, for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion.74 In the recent case of Levakovic v Denmark the ECtHR assessed whether the Danish authorities had provided relevant and sufficient reasons to justify the expulsion of the applicant, a Croatian national who had lived in Denmark since he was nine months old and who, from the age of 25 was threatened with expulsion. It held that when assessing the nature and seriousness of the offences committed by the applicant, a multiple offender, the national authorities were entitled to take the view that they attained a level of gravity warranting expulsion unless other counterbalancing criteria militated against imposing that measure in the light of the Court’s case law. It attached particular weight to the fact that the expulsion of the applicant did not interfere with his family rights. He was an unmarried adult without children, thus obviating the need to take into account weighty reasons directed at protecting a child’s best interests. Moreover, the Court examined carefully the applicant’s social and cultural ties with the host country, finding that although he had lived all his life

72 See Case no 26102/95 Dalia v France, § 52, 19 February 1998; Case no 25017/94 Mehemi v France, § 34, 26 September 1997; Case no 54273/00 Boultif v Switzerland, § 46, 2 August 2001; and Slivenko v Latvia, cited above, § 113. 73 See variously Case no 54273/00 Boultif v Switzerland, § 48, 2 August 2001; Case no 46410/99 Üner v The ­Netherlands [GC], §§ 57 and 58, 18 October 2006; Case no 1638/03 Maslov v Austria [GC], § 68, 23 June 2008; Case no 77036/11 Salem v Denmark, § 64, 1 December 2016; Case no 41215/14 Ndidi v United Kingdom, § 80, 14 September 2017; Levakovic v Denmark, cited above, § 36. 74 See eg Maslov v Austria [GC], cited above, § 75.

68  Síofra O’Leary in Denmark, he was very poorly integrated: ‘the applicant has primarily lived a life of crime and consistently demonstrated a lack of will to comply with Danish law’.75 Yet, as recognised by the two concurring judges, if the applicant had no social ties with Denmark, he clearly had very few if any with his country of origin, and while he possessed Croatian nationality it was difficult to see the type of genuine link between him and his country of origin to which the Nottebohm definition of nationality refers. From an ECHR/EU law perspective, the case is also notable for having been argued before the Strasbourg Court almost exclusively with reference to the Convention although, since the 2013 accession of Croatia to the EU, it was also a case which concerned an EU citizen resident for some time in a host Member State and his threatened expulsion to his EU Member State of origin. Given this fact, questions could undoubtedly have arisen regarding the rights of residence which he might or might not have enjoyed pursuant to Directive 2004/38 and/or under Article 21 TFEU. As such, the case is perhaps a salutary reminder of how it may be difficult for some courts or in some cases to determine when a fundamental rights question should be destined for Luxembourg rather than Strasbourg, and vice versa.76

B.  Luxembourg Case Law on the Rights of EU Citizens to Move and Reside Freely As indicated previously, since a directly effective right to free movement and residence, subject to limitations and conditions, is conferred by Article 21 TFEU and regulated for some but not all EU citizens by Directive 2004/38, it might seem superfluous to go down this path. In the words of Thym: within the EU the experience of integrating nation-states into a cosmopolitan empire which is founded upon the rule of law and the free movement of persons blurs our understanding of the regular significance of state sovereignty over cross-border migration.77

Thus, the immigration case law of the ECtHR under Article 8 seems, at first sight, of indirect relevance only to third country nationals in EU law terms and, even then, only to those who do not derive rights from EU citizens or from special regimes such as the EU-Turkey Association Agreement. However, a spate of relatively recent ECJ cases seeking to determine when, even after acquiring permanent residence, EU citizens can be expelled from host Member States reveal more similarities than might at first sight be expected. The applicant in Onuekwere was a Nigerian national who married an Irish national, and thus an EU citizen, resident in the UK. He was convicted of criminal offences on several occasions and therefore part of the time residing in the UK corresponded to periods of imprisonment. The question referred to the ECJ was whether these latter periods constituted legal residence for the purposes of the

75 Levakovic v Denmark, cited above, § 44. 76 The case of Biao v Denmark, discussed above, provides another example given that the family resided in Sweden. A further example is provided in a case study by E Ersbøll, ‘Nationality and Identity Issues – A Danish Perspective’ (2014) 15 German Law Journal 835, 854. 77 D Thym, ‘Respect for Private and Family Life Under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’ (2008) 57 ICLQ 87, 103.

Nationality and Citizenship: Integration and Rights-Based Perspectives  69 assessment of the applicant’s residence rights, as a family member of an EU citizen, under Directive 2004/38. The ECJ held that the continuity of residence required under Article 16 of the latter directive was interrupted by periods of imprisonment. How it reached this conclusion is the most interesting part of the case, due to the light it casts on EU citizenship as a legal status, a source of rights, and both a vehicle for integration and a manifestation of same. The right of permanent residence regulated by Article 16 of the directive is regarded as ‘a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship.’ The acquisition of that right is thus subject to the integration of the EU citizen seeking it.78 According to the ECJ: Such integration … is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host Member State … to such an extent that the undermining of the link of integration between the person concerned and the host Member State justifies the loss of the right of permanent residence …79

The ECJ found that the imposition of a prison sentence demonstrated an individual’s failure to comply with the values expressed by the host society in its criminal law. Taking into consideration periods of imprisonment for the purposes of acquisition of a right of residence as an EU citizen’s family member would thus have been contrary to the aim pursued by Directive 2004/38. There are clear overtones of a social contract of sorts at play in Onuekwere and of the need for applicants to adhere to basic societal values which are also spectres in the Strasbourg Article 8 ECHR case law referred to above. For what might be the first time in its case law on EU citizenship, the Court appeared to point to the duties which flow from EU citizenship, instead of concentrating merely on the rights which that status confers. If the degree of integration of an EU citizen or family member determines some of the rights they can enjoy while in a host Member State, it also influences the system of protection which applies to them if that state seeks to remove them. The ECJ has been providing increasingly broad interpretations of what constitutes ‘imperative grounds of public security’ which is what is required to justify the expulsion of a long-term EU citizen resident benefitting from enhanced protection.80 In B v Land Baden Württemberg, the question was whether an EU citizen who had spent periods in prison while in the host Member State could continue to enjoy the enhanced protection against expulsion enjoyed by those benefiting from permanent residence? The ECJ looked at the ‘integrative links’ which the EU citizen applicant had forged in the host Member State during the period of residence prior to his detention. It sought to establish whether, from a social, cultural and family perspective, the person concerned was genuinely rooted in the society of the host state.81 Of relevance to the overall assessment to be undertaken was the nature of the offence or offences committed and the attitude of the person concerned when in detention, both of which were capable

78 Onuekwere, cited above, para 24. 79 ibid, para 25. 80 See Case C-348/09 PI EU:C:2012:300. The language of ‘values’ features at para 21 of PI also, where the ECJ held that ‘European Union law does not impose on Member States a uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public security’. 81 B v Land Baden Württemberg, cited above, § 70–72. See also Cases C-145/09 Tsakouridis EU:C:2010:708 and C-400/12 MG EU:C:2014:9.

70  Síofra O’Leary of pointing to his or her disconnection from the society of the host state or conversely to the maintaining or restoration of the links already forged.82 This case law raises the question whether permanent residence can be regarded as a right after all or whether it is not something of a privilege, enjoyment of which can be decided in a given case by reference to territorial, temporal and qualitative factors. Referring to this case law on Directive 2004/38, Azoulai states: Genuine integration into the social environment demonstrated by material or cultural efforts to assimilate and a real contribution to the host society may be required. The logic of integration which enables the protection of factually integrated persons is turned into something else: a logic of assimilation with a view to the maintenance of the perceived cohesion of the host society.83

However, if that is the case, when comparing the ECJ and ECtHR case law just outlined we do not appear to be comparing apples and pears after all. The reason for the insistence on social integration in both sets of cases is that it mediates between the individual’s right (EU) or claim (ECHR) to be integrated into the host society and the prerogative of Member States to preserve social cohesion and, in the case of High Contracting Parties to the ECHR, to continue to police the entry and residence of non-nationals in order to do so. There are, it could be argued, fault lines in different strands of ECJ case law involving less than model EU citizens which are worth exploring further. The case law just outlined permits a non-national EU citizen being removed from a host Member State because his or her criminal behaviour testifies to a failure to integrate, to comply with values expressed by that host society and even the absence of the ‘feeling’ of Union citizenship. Enhanced legal protection follows from integration, with the latter the condition rather than the proof of permanent residence. In contrast, case law on the European Arrest Warrant (EAW) explains the rationale behind the grounds for the optional non-enforcement of an EAW by an executing Member State, namely: the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires. The Member State of execution is therefore entitled to pursue such an objective only in respect of persons who have demonstrated a certain degree of integration in the society of that Member State … the single condition based on nationality for its own nationals, on the one hand, and the condition of residence of a continuous period of five years for nationals of other Member States, on the other, may be regarded as being such as to ensure that the requested person is sufficiently integrated in the Member State of execution. By contrast, a Community national who 82 ibid, paras 73–75. See also, Case C-331/16 K EU:C:2018:296, where the ECJ held that Art 27(2) of Directive 2004/38 must be interpreted as meaning that the fact that an EU citizen or a third-country national family member, who applies for a right of residence in the territory of a Member State, has been the subject, in the past, of a decision excluding him from refugee status under Art 1F of the Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951 and supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967 does not enable the competent authorities of that Member State to consider automatically that the mere presence of that individual in its territory constitutes, whether or not there is any risk of re-offending, a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, capable of justifying the adoption of measures on grounds of public policy or public security. However, the overall assessment to be undertaken can seek to examine whether the individual’s conduct reveals the persistence in him of ‘a disposition hostile to the fundamental values enshrined in Arts 2 and 3 TEU, capable of disturbing the peace of mind and physical security of the population’ in the host Member State. 83 See L Azoulai, ‘Transfiguring European Citizenship: From Member State Territory to Union Territory’ in Kochenov (ed), cited above, 178 at 190.

Nationality and Citizenship: Integration and Rights-Based Perspectives  71 does not hold the nationality of the Member State of execution and has not resided in that State for a continuous period of a given length generally has more connection with his Member State of origin than with the society of the Member State of execution.84

Here we see legal protection resulting from permanent residence, with an examination of the quality of that residence not touched upon since the length of residence sufficed as proof of integration. We come full circle in a recent trilogy of cases on the extradition to third states of EU citizens, resident in a Member State other than their Member State of origin. These cases highlight: (i) the ever-expanding scope of EU law, with free movement an ever-faithful trigger; (ii) permanent residence in the host EU state as a basis for opposing extradition; and (iii) the continued centrality of the Member State of origin, which must be informed of any extradition request and which may even issue an EAW, which warrant would trump the extradition warrant, provided certain conditions are met.85

IV. Conclusions Continued use of the term ‘alien’ in Strasbourg case law on Article 8 ECHR in the context of immigration highlights the distinct nature of the rights of non-nationals pursuant to the Convention and EU law. This distinction is heightened when it comes to the beneficiaries of EU citizenship. Long before the formal establishment of the latter status, the language of citizenship had begun to infuse the case law of the ECJ on the free movement of workers86 and the ECJ had repeatedly emphasised the objectives of integration and social cohesion which underpinned EU free movement rights.87 EU citizens enjoy a right of free movement and residence, albeit not unlimited, and enhanced legal protection may follow for EU citizens from long-term residence as a result of the greater degree of integration which such residence is said both to facilitate and demonstrate. Despite these very clear differences, it is difficult to avoid the impression, from the selected cases discussed above, that when it comes to decisions refusing access to or revoking Member State nationality, the status which acts as a gateway to EU citizenship, there is more that unites these two distinct legal regimes than divides them. Member State competence in this field is recognised but its exercise may be subject to ECJ judicial review or ECtHR external supervision. When either European court assesses decisions revoking Member State nationality they examine the procedures leading thereto to ensure an absence of arbitrariness. The consequences of any revocation fall to be examined with reference to the principle of proportionality. Where the integration of a non-national fails or is sub-optimal and a host

84 See, eg, Case C-123/08 Wolzenburg EU:C:2009:616, paras 67–68 (emphasis added). Art 4(6) of Framework Decision 2002/584 provides that an executing judicial authority may refuse to execute an EAW: ‘where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law’. 85 See Cases C-182/15 Petruhhin EU:C:2016:630; C-191/16 Pisciotti EU:C:2018:222, and C-247/17 Raugevicius EU:C:2018:898. 86 See, for an example, way back beyond, the reference to ‘Community citizens’ in the Opinion of the late AG Mancini in the Meade case, C-238/83, EU:C:1984:209, at 2641. 87 See, eg, the Opinion of AG Trabucchi in Case 7/75 F. EU:C:1975:75, or the judgment of the ECJ in Case C-308/89 di Leo EU:C:1990:400.

72  Síofra O’Leary state seeks to remove him or her from its territory, there is again far less separating the two legal regimes than might have been expected. The legal reflexes on display in the case law of the two European courts and the language employed are remarkably similar. The prime duty of care for non-national residents, even EU citizens, in many cases seems to remain with their Member State of origin, a point emphasised by the recent extradition trilogy. This fleeting overview of questions relating to nationality, citizenship, allegiance and integration leads me to some equally fleeting observations. First of all, while the analysis might appear to present a very pessimistic picture of how EU citizenship has evolved and what it has contributed, this would be to traduce the author’s intention. It is worth remembering, after all, what life in the EU looked like thirty years ago for those who, through choice, chance or circumstance, found themselves residing outside of their Member State of origin. I refer, for example, to those Member State nationals who were unemployed but seeking work outside their Member State of origin where unemployment hovered at 20 per cent, or those in work in a host state but who were excluded de jure or de facto from the social or tax advantages enjoyed by national workers, or those excluded on grounds of nationality, not on paper but in practice, from accessing entire sectors or professions in the host state.88 ECJ case law on free movement and EU citizenship has played a fundamental role in minimising or removing numerous barriers of this nature which previously existed. As regards the case law on the acquisition and loss of nationality, here too it is worth remembering the magnitude of what is involved. In its 1955 judgment in Nottebohm, the International Court of Justice described the nature and effect of the process of naturalisation in the following terms: it is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life of a human being. It involves his breaking of a bond of allegiance and his establishment of a new bond of allegiance. It may have far-reaching consequences and involve profound changes in the destiny of the individual who obtains it. It concerns him personally, and to consider it only from the point of view of its repercussions with regard to his property would be to misunderstand its profound significance. In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attached to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him.89

It would be a mistake to view EU citizenship solely in terms of free movement.90 Article 10 § 3 TEU, for example, which provides, in a Union founded on representative democracy, that every EU citizen shall have the right to participate in the democratic life of the Union, points to the legal and political significance of a status which historical concentration on free movement should not lead us to overlook. Nonetheless, perhaps the ‘free movers’ can,

88 The legal saga of the Italian university ‘lettore’ tells at least one of these tales: see, for example, Case 33/88 Allué and another v Università degli Studi ai Venezia EU:C:1989:222; Joined Cases C-259/91, C-331/91 and C-332/91 Allué and Coonan and others v Università degli studi di Venezia and Università degli studi di Parma EU:C:1993:333, or Case C-90/96 Petrie and others v Università degli Studi di Verona EU:C:1997:553. 89 Nottebohm Case (Liechtenstein v. Guatemala), cited above, 24. 90 See recently, for an admirable and innovative analysis of its scope and importance, the dissertation by K Grimonprez, ‘The EU Dimension in Education for Democratic Citizenship: a Legal Analysis’, University of Luxembourg, 2018 forthcoming, Nomos.

Nationality and Citizenship: Integration and Rights-Based Perspectives  73 more than static EU citizens, appreciate the import of the ICJ’s words more fully. Moving to and residing in a state whose nationality one does not possess entails the exercise of rights, often subject to conditions, but also leads to questions relating to integration, belonging, even allegiance, where the law may have limited if any impact. Lastly, an analysis of the case law of the two European courts reveal parallels and interconnections which those steeped mainly in EU law – in the past, this author included – might not have expected. There is much that is innovative, fresh and challenging in the ECJ’s EU citizenship case law. However, it might also be worth wondering whether, once the new frontier was crossed in the ECJ case law of the 1980s and 1990s,91 what followed could be considered really ‘new under the sun’?92 Once again, this is not intended as a criticism of this innovative status and its development in EU legislation and case law. It is simply recognition, in honour of a very fine and ever-modest EU/international jurist, that out of modesty may come great strength.93

91 Different readers will no doubt opt for different milestones dating from that period – perhaps Gravier, Cowan, Martínez Sala or others. 92 Book of Ecclesiastes 1:9: ‘The thing that hath been, it is that which shall be; and that which is done that which shall be done: and there is no new thing under the sun.’ 93 Since this chapter was written, the ECJ handed down its judgment in Tjebbes (Case C-221/17 EU:C:2019:189). Asked whether Article 20 TFEU precludes Member State legislation which provides for loss of nationality for nationals resident outside the Netherlands and the territories of the EU for 10 years or more, the Luxembourg court answered in the affirmative. It considered it legitimate for a Member State, given that nationality is the expression of a genuine link between it and its nationals, “to prescribe that the absence, or the loss of any such genuine link entails the loss of nationality” (ibid, para 35). However, it stressed that this loss of nationality by operation of law was conditional on possession of the nationality of another State and that the ten year period could be interrupted with relative ease (namely, residence of 1 year in the Netherlands or application for an ID document or declaration of nationality). In addition, application of this general measure had to be accompanied by an individual assement of the consequences of the loss for the person concerned “from the point of view of EU law”. The ECI also indicated that it might require the possibility of reinstatement, where appropriate, if the consequences of loss were deemed disproportionate (ibid paras 41–47). The judgment continues the previous Rottmann line but appears to develop it in some ways. It is both progressive (expressing greater concern at the prospect of statelessness) and somewhat reductive (the content of Union citizenship is largely associated with the internal market). Furthermore, it accepts the objective pursued by the Dutch legislation (a system to avoid the undesirable consequences of one person having multiple nationalities) without probing further. It is slightly odd that a judgement on EU ctizenship does not recongnize that one of the products of the free movement of Union citizens in an area of freedom, security and justice may be precisely a generation of Union citizens with multiple nationalities, allegeances and genuine linjks. While such EU citizens are not the norm, they are a reality.

74

5 EU Law and Sovereign Debt Relief MIGUEL POIARES MADURO*

Allan Rosas will be remembered as one of the giants in the history of the European Court of Justice (ECJ, or Court). A fine and sophisticated legal mind, a person who expects both precision and comprehensive knowledge of the legal sources, yet is open to be surprised by counterintuitive arguments. A justice that knows that law is in the books, but is at the service of justice only when placed in action. The topic I selected for this essay is, precisely, at the intersection of law in the books and law in action. I try – whether successfully, the reader will decide – to put forward a somehow counterintuitive approach to the legal limits imposed by European Union law on sovereign debt relief. In determining the legal limits to public debt restructuring under EU law there are two things to assess. The first regards the different forms that such debt restructuring or re-profiling may take. Are all the different possible measures of debt restructuring or re-profiling legally possible? If not, which, if any, are lawful? The second issue regards the conditions that need to be fulfilled or must/can be imposed in the context of such measures of debt restructuring or re-profiling. In addition, one must keep in mind the relationship between the legally possible and the politically feasible or desirable. The relationship between politics and the law is, in this area, particularly complex and intricate. Legal arguments are often used to support or preclude certain political solutions. The consequence is that the more legally controversial a measure will be, the harder it will be, politically, to adopt it. Furthermore, national supreme and constitutional courts have, on occasions, tried to impose their own limits on what may be done in this area of EU law. Even if, in the legal orthodoxy of EU law, national constitutional law does not prevail over EU law, it must be recognised that the positions taken by those national high courts will at least have an important political impact in conditioning the position of the respective national governments. All this must be taken into account when considering the relation between EU law and official debt relief. Both the FEU Treaty rules and the case law of the ECJ provide important guidelines. I will argue that that there are fewer limits for official debt relief than it is usually assumed. This does not mean that the political and national constraints will make it possible * This essay is based on a note I prepared for an Independent Report on the Greek Official Debt that I co-authored with Barry Eichengreen, Emilios Avgouleas, Ugo Panizza, Richard Portes, Beatrice Weder di Mauro, Charles Wyplosz and Jeromin Zettelmeyer. Being the only lawyer in the group, I am thankful to my Economics colleagues for how much I learned from them in the economic understanding of sovereign debt and how that impact on my legal analysis of the relevant legal rules.

76  Miguel Poiares Maduro (or even desirable) to do all that EU law may allow. Moreover, it also stresses the importance of conditionality to legitimate any use of what is legally possible.

I.  Financial Assistance under EU Law Any form of debt relief is a form of financial assistance that needs to be assessed with reference to the no-bailout clause set out in Article 125 TFEU: 1. The Union shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project. A Member State shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of another Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project.

This provision prohibits other Member States or the EU from becoming liable for, or assuming the commitments of, another Member State.1 This may occur by making payment on that debt or committing to make such payment in the future. This is different from buying bonds that have been issued by the state since no discharge takes place nor do the states or the European Stability Mechanism (ESM) assume a commitment to discharge. In the latter case, as the Court of Justice argued in Pringle, the debt is simply transferred but continues to exist.2 The text of Article 125 TFEU regulates financial payments within a triangle constellation of initial creditor, the debtor state and the debt-assuming state:3 in this sense, it prohibits ‘liability’ and the assumption of ‘commitments’ of another Member State. Not only does the Treaty not impose any obligation to be liable for debt of another Member State, it actually prohibits the voluntary assumption of such liability by the Union or Member States. The objective is clear: to impose market discipline on Member States budgetary and fiscal policies since their debt is not ‘guaranteed’ by the Union or other Member States. As the Court of Justice stated in Pringle: 135 It is apparent from the preparatory work relating to the Treaty of Maastricht that the aim of Article 125 TFEU is to ensure that the Member States follow a sound budgetary policy … The prohibition laid down in Article 125 TFEU ensures that the Member States remain subject to the logic of the market when they enter into debt, since that ought to prompt them to maintain budgetary discipline. Compliance with such discipline contributes at Union level to the attainment of a higher objective, namely maintaining the financial stability of the monetary union. 136 Given that that is the objective pursued by Article 125 TFEU, it must be held that that provision prohibits the Union and the Member States from granting financial assistance as a result of which the incentive of the recipient Member State to conduct a sound budgetary policy is diminished … 1 See for a debate in this respect J-V Louis, ‘Guest editorial: The no-bailout clause and rescue package’ (2010) 47 Common Market Law Review 971; P Athanassiou, ‘Of Past Measures and Future Plans for Europe’s Exit from the Sovereign Debt Crisis: What is Legally Possible (and What is Not)’ (2011) 36 European Law Review 558. 2 Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:756, para 139. 3 A Steinbach, ‘The Haircut of Public Creditors under EU Law’ (2016) 12 European Constitutional Law Review 223.

EU Law and Sovereign Debt Relief  77 The Court looked back at the preparatory work of the Maastricht Treaty, where the i­ ntention to ‘ensure that the Member States remain subject to the logic of the market’, when they enter into financial assistance, was stated.4 Article 125 TFEU, as interpreted by the Court, is meant to press Member States to conduct sound budgetary policies. That does not exclude, therefore, financial assistance so long as that market discipline is preserved and/or incentives for a sound budgetary policy are guaranteed. As the Court also notes, the FEU Treaty expressly foresees the possibility of such financial assistance in Article 122(2) ‘where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond is control’. In addition, nothing in the EU Treaties prevents Member States from providing any form of financial assistance to each other (in the same way that they can provide it to third states). It would be absurd to exclude the possibility for one or more states deciding on a voluntary and bilateral basis to financially help another Member State. What they are forbidden from is providing financial assistance that would put into question the conduct of a sound budgetary policy by another EMU state. The Court concluded therefore that such financial assistance can be provided, but subject to certain strict conditions: … As is apparent from paragraph 5 of the [European Central Bank (ECB)] opinion on the draft European Council Decision amending Article 136 of the Treaty on the Functioning of the E ­ uropean Union with regard to a stability mechanism for Member States whose currency is the euro, the activation of financial assistance by means of a stability mechanism such as the ESM is not compatible with Article 125 TFEU unless it is indispensable for the safeguarding of the financial stability of the euro area as a whole and subject to strict conditions.5

The FEU Treaty therefore does not prohibit financial assistance; on the contrary it foresees it. But, for the Court, such financial assistance needs to be ‘indispensable’ to safeguard the financial stability of the euro area as a whole and of its Member States. This requirement means that financial assistance cannot be granted just for the sake of solidarity: it needs to be systemically justified in light of the overall interest of the euro area. If this can be seen as limiting solidarity, it can also, on the other side, help to support it: it makes clear that such solidarity is in the interest of all. In any event, as recent history has proved, and the reasoning of the Court in the judgment also renders clear, the need for financial assistance of a state has, per se, a potential systemic impact on the whole euro area, making this an easier criterion to fulfil than otherwise might be thought. It is also the type of criterion where the Court usually grants a large margin of appreciation to the political process. Such financial assistance needs, however, to also safeguard the incentives for sound budgetary policy that underpin the Monetary Union. What are the acceptable forms of financial assistance and the conditions to which it will be subject are determined by the need to protect that objective. The crucial thing therefore is that the form, type and conditions of financial assistance (including the forms and nature of possible debt relief) have to comply with the fundamental objective of guaranteeing a sound budgetary policy of that Member State.

4 P Craig, ‘Pringle: Legal Reasoning, Text, Purpose and Teleology’ (2013) 20 Maastricht Journal of European and Comparative Law 3. 5 Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:756, para 136.

78  Miguel Poiares Maduro Member States cannot be under any obligation, imposed or voluntarily undertaken, to assume the debt of another Member State since that would reduce market discipline on sound budgetary policies. If creditors knew that other states would assume liability for the debt of a Member State, they would care little about the budgetary policies of the latter, and the disciplining effect of the debt market would be absent. That is different from Member States or even the EU voluntarily providing certain forms of financial assistance to a Member State that is no longer capable of making good on its commitments. In this case, neither the European Union nor the Member States are ex ante assuming any liability or assuming the commitments of that Member State towards others. One thing is for the European Union or the Members to, de facto or de jure, guarantee the commitments a state will enter into with others; another is for the European Union and the Member States to financially assistant a Member State that can no longer honour those commitments. While the first will eliminate market discipline on a state’s budgetary policies, the second won’t. It is this that explains Article 125 TFEU being structured in terms of a trilateral relation: ie, the EU or a Member State being liable or assuming the commitments another Member State undertakes with respect to third parties. This trilateral nature would seem to allow for the possibility of debt forgiveness. In fact, in this instance, we are in the realm of a bilateral relation with the creditor itself forgiving the debt, and not with a third part assuming liability for that debt or making payment on it. The biggest obstacle to financial assistance resulting from the text of Article 125 TFEU appears to be the prohibition for a state assuming commitments undertaken by another Member State. This latter reference was introduced in Article 125 TFEU at a later stage and it is not clear what it means. In its Opinion in Pringle, Advocate General Kokott states that assuming commitment means either discharging the commitment by itself making payment or by becoming liable itself for the future payment.6 Does this means that the Union or the Member States cannot assume the debt of another Member State by making payment on such debt? According to the Court (and the Advocate General herself) that is not so, at least as long as the debt does not disappear. ESM is not seen as contravening the prohibition of Article 125 TFEU, because what it does is either to replace a loan for another loan, or simply change the creditor (by buying bonds issued by the debtor state). In both cases the debt continues to exist (and the commitment to pay remains with the debtor state). The Member State remains liable, but now with respect to the loans given by ESM or bought by the ESM. As stated by the ECJ, granting a credit line to the state ‘in no way implies that the ESM will assume the debts of the recipient Member State. On the contrary, such assistance amounts to the creation of new debt owed to the ESM by that recipient State’.7 In fact, the Court goes further and considers both that, under Article 13(6) of the ESM Treaty, ‘any financial assistance granted … must be repaid to the ESM’ and that, under Article 20(1) of the ESM Treaty, the amount to be repaid is to include an ‘appropriate margin’.8

6 View of AG Kokott in Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:675, para 121. 7 Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:756, para 139. 8 ibid. This point is stressed by some commentators as a necessary condition for financial assistance to be acceptable under Art 125 TFEU. See, notably, A Steinbach, ‘The “Haircut” of Public Creditors under EU Law’, n 4 above.

EU Law and Sovereign Debt Relief  79

II.  Financial Assistance and Debt Relief The reasoning of the Court in Pringle does make financial assistance possible. At the same time, it appears to do so in such a way as to strongly limit the possibility of debt relief. If Member States are considered not to assume the commitments of another Member State only so long as the loans of the latter are only replaced or transferred, but not discharged, doesn’t this mean that those loans will always have to be honoured by that state for such a condition to be respected? To forgive (or offer substantial relief for) those loans at a later stage would be to later discharge part of the debt of that Member State and, therefore, to assume it. This said, it is far from clear that both the FEU Treaty and the decision in Pringle actually prohibit debt forgiveness. First, the two ‘requirements’ mentioned by the Court (that the ‘new debt’ needs to be repaid and include an appropriate margin) are mentioned in the judgment as conditions resulting from the ESM Treaty but not Article 125 TFEU itself. They are used by the Court to highlight how the ESM Treaty imposes strict conditions on the financial assistance being granted, therefore supporting the conclusion that that Treaty does not violate Article 125 TFEU. That is different from establishing that they would be necessary conditions for any financial assistance resulting from Article 125 TFEU. Second, it would be paradoxical for the violation of Article 125 TFEU to emerge not when the Union or other Member States assist a Member State in honouring its commitments towards other creditors, but only when they, as the new creditors of that state, voluntarily decide to provide relief on the debt owed to them by that state. It is in the first moment (assisting a Member State with respect to other creditors) that the overall purpose of the provision is at stake: to protect the market discipline resulting from creditors not having their credits guaranteed by the Union or other Member States. The ESM buying bonds or giving loans allowing replacement of market loans would seem to be more likely to question the purpose of the provision than any form of debt relief on debt already owned by the ESM or the European Financial Stability Facility (EFSF) (so long as this remains, ex ante, discretionary and, therefore, uncertain). As the Court stated in Pringle, ‘in order to determine which forms of financial assistance are compatible with Article 125 TFEU, it is necessary to have regard to the objective pursued by that article’.9 The fundamental purpose of Article 125 TFEU (ensuring market discipline on states’ budgetary policies) is at stake in the trilateral relation between a debtor state, its market creditors and the Union or other Member States, not in the relation that is established once a debtor state benefits from assistance from the Union or other Member States. It is in this light that one can understand Advocate General Kokott’s statement that direct support to the creditors is prohibited by Article 125 TFEU while indirect support, via support to the debtor state, is not prohibited. It seems a good summary, with the caveat that even the latter can’t be certain or guaranteed, otherwise the market discipline through interest rates spreads would disappear.10

9 Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:756, para 133. 10 View of AG Kokott in Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:675, paras 148–49.

80  Miguel Poiares Maduro What seems crucial therefore is to determine whether the assumption of commitments is made a priori and with regard to other creditors (this is actually the focus in Pringle). If it is, it becomes an implicit guarantee that withdraws market discipline from the state in the form of interest rate differentiation (spreads). If it is not and there is only an hypothetical possibility of financial assistance being granted to a state, that will facilitate the discharge of its commitments to those creditors, then the purpose of the provision is respected and the type (but not the conditions) of the financial assistance is largely irrelevant. Legally, therefore, what is necessary to assess is if the form of financial assistance, and the conditions attached to it, protect the goals of ensuring market discipline and sound budgetary policies. In itself, debt forgiveness is not, per se, prohibited by the rules so long as the way it is structured will safeguard those goals. Moreover, for the reasons mentioned above, other forms of financial assistance are actually more likely to endanger those goals than a haircut on debt already owned by the EU or other Member States, including through the ESM. Further support for this position comes from the Gauweiler decision.11 In this Judgment the Court of Justice assumes the possibility of a debt loss by the ECB with respect to bonds it buys from Member States. The Court simply assumes that this is inherent in buying bonds in the secondary market.12 It states, moreover, that ‘even if it were established that that programme could expose ECB to a significant risk of losses, that would in no way weaken the guarantees which are built into the programme in order to ensure that the Member States’ impetus to follow sound budgetary policy is not lessened’.13 In light of the above, debt relief is possible so long as the means chosen do not endanger the purpose of market discipline enshrined in the FEU Treaty and respect the conditionality requirement aimed at guaranteeing sound budgetary policies. This, however, does not mean that the form and extent of debt relief is irrelevant.

III.  Conditionality and Debt Relief First, the more substantial the debt relief, the harder it becomes to demonstrate that conditionality-based financial aid represents a functional equivalent to market-based refinancing according to the ECJ’s interpretation in Pringle. Debt relief, particularly a haircut, reduces the incentive to consolidate budget policies and can heighten moral hazard.14 Naturally, this 11 Case C-62/14 Gauweiler and Others v Deutscher Bundestag EU:C:2015:400. 12 Craig and Markakis do acknowledge this, but differentiate it from Art 125 TFEU. In their opinion, this provision refers only to Union budget but not to the ECB that his distinct. A contrario, they seem to assume that Art 125 TFEU will, in fact, prohibit a debt cut with regard to the institutions foreseen therein. I do not agree with this for the reasons mentioned above. Moreover, the Court’s analysis of what is at stake under Art 123(1) TFEU is remarkably similar to what it does in Pringle for Art 125 TFEU and, the principles being the same, it is remarkable that it does not even question the possibility of the ECB losses being contrary to the EU Treaties. The focus (paras 123–24) is on the guarantees provided by conditionality both in preserving the incentives for sound fiscal and budgetary policies and in limiting potential losses. P Craig and M Markakis, ‘Gauweiler and the Legality of Outright Monetary Transactions’, (2016) 41 European Law Review 1. 13 Case C-62/14 Gauweiler and Others v Deutscher Bundestag EU:C:2015:400, para 123. 14 See A Steinbach, ‘The “Haircut” of Public Creditors under EU Law’, n 4 above, in connection with MC Kerber and S Städter, ‘Ein Beitrag zum Individualrechtsschutz gegen Rechtsverstöße der EZB’ (2011) EuZW 536; W Frenz and C Ehlenz, ‘Europäische Wirtschaftspolitik nach Lissabon’ (2010) GewArch 329.

EU Law and Sovereign Debt Relief  81 depends on the extent and type of debt relief. In other words, there is a trade-off between the extent of debt relief provided to a state and the extent to which market discipline and the incentives for sound budgetary policies are protected. This trade-off, while inevitable, must preserve the two latter goals. Second, the ESM Treaty also seems to put limitations of its own on the forms of debt relief possible, at least with respect to debt owned by the ESM. As said above, the Court notes in Pringle that the ESM Treaty foresees the recovery in full of any assistance given to the Member State (Article 13(6)).15 As already mentioned, while some commentators assume that the Court is actually mandating a condition for the legality of financial assistance under Article 125 TFEU16 that is not my view. Be that as it may, even if that recovery in full is not a requirement imposed by the TFEU on any form of financial assistance, it is a condition imposed by the ESM Treaty with respect to the assistance provided under it. Third, one should not ignore that the more legally controversial the form of debt relief the higher the risk that it will become politically unfeasible. In this light, it should not be ignored that a haircut on nominal debt is considered by many to infringe the no-bailout clause.17 The arguments I put forward contest this view on the legality of debt relief but the reality is that such a legal position taken in some Member States will make it harder for the necessary political agreement to be reached at EU level. In this instance, the position of national constitutional and supreme courts is particularly relevant since it is bound to determine the limits to the positions that can be taken by the respective national governments. The best-known example is that of the German Constitutional Court. In a series of cases, this Court has established important limits to the forms of financial assistance that could be provided by the German State. It has done so in light of the democratic principle, including budget autonomy and self-determination. It accepted that Germany could become liable for other Member States’ or the EU’s financial needs but also made clear that such financial assistance has to be limited, controlled by Parliament and subject to strict conditionality. It has not however, to my knowledge, excluded the possibility of official debt relief. What is crucial therefore, in light of the ECJ’s and national courts’ case law, is for market discipline not to be eliminated and incentives for sound budgetary policies to be in place. This requires two things. First, financial assistance needs to be given in a way that does not eliminate market discipline, by preserving differentiated credit risks with a disciplining effect in the interests paid by different states. This is fundamentally achieved, as described above, by that financial assistance being given to the debtor and not the creditors and by being uncertain (if not unlikely) at the time the debt is bought. Second, taking into account that once that financial assistance is given a state is, partially or totally during a certain period of time, exempt from market discipline a mechanism must be put in place to ensure sound budgetary policies during such a period. That is the role of strict conditionality attached to financial assistance. Strict conditionality also serves, however, the first purpose

15 Case C-370/12 Pringle v Government of Ireland and Others EU:C:2012:756, para 139: all financial assistance is to be repaid, and with a margin. 16 A Steinbach, ‘The “Haircut” of Public Creditors under EU Law’, n 4 above, openly ‘assumes’ so by interpreting the words of the judgment, which are not clear. 17 See ibid, at 223.

82  Miguel Poiares Maduro of ­preserving market discipline. The subjection of financial assistance to strict ­conditionality makes it both less appealing and less certain thereby helping to protect the role of market discipline. In Gauweiler the ECJ stated that the ECB policy of buying state bonds on the market was acceptable also because of the ‘guarantees which are built into the programme in order to ensure that Member States’ impetus to follow a sound budgetary policy is not lessened’.18 These guarantees, inherent in conditionality, are also likely to reduce the risk of losses.19 Strict conditionality must therefore always be part of any debt relief.



18 Case

19 ibid,

C-62/14 Gauweiler and Others v Deutscher Bundestag EU:C:2015:400, para 123. paras 123–24.

6 Economic Governance in a Changing Union Fiscal Rules and Market Discipline in the Euro Area OLLI REHN*

The recent tensions between Italy, on one hand, and the European Union institutions and other Member States, on the other, about applying fiscal rules have drawn attention to the relationship between rules and market discipline in the European Union. During the euro area debt crisis in 2010–12, these tensions were likewise more than prevalent. It has been undisputed, at least since the drafting of the Delors report of 1989, the ­blueprint for the EMU, that a sustainable monetary union requires sound public finances on the part of the participating countries. Already in that report, two ways of ensuring this were considered: fiscal rules monitored and enforced by Community bodies, and market discipline.1 The fiscal policy rules for the EMU countries were originally included in the Maastricht Treaty of 1992, in the form of a general wording, with more precise implementation rules being set out in the EU Stability and Growth Pact of 1997. According to the fiscal policy framework, the general government deficit should not exceed 3 per cent and general government debt 60 per cent of a country’s GDP. The prerequisites for market discipline were written in the Treaty, especially in the famous ‘no-bailout clause’ of the Maastricht Treaty.2 The no-bailout clause was meant to make it clear that each Member State would be responsible for its financial commitments, in order to protect other Member States from adverse externalities emanating from a single country’s fiscal problems. At the same time, the clause would make investors in the financial markets more alert to the financial condition of each Member State and keep lenders cautious as appropriate. At the time of the euro’s creation, there apparently was a strong belief in the ability of the Stability and Growth Pact together with the market forces to maintain effective budgetary discipline and, also, to prevent excessive private indebtedness. The threat of * This chapter elaborates on my previous work in O Rehn, Walking the Euro Highwire (Palgrave Macmillan, forthcoming 2020). 1 Committee for the Study of Economic and Monetary Union, Report on Economic and Monetary Union in the European Community (Luxembourg, Office for Official Publications of the European Communities, 1989) paras 30 and 33. 2 Treaty on European Union (Maastricht text), 29 July 1992, Art 104b.

84  Olli Rehn rising interest rates was assumed to force the eurozone countries to keep their public finances in control, avoid macroeconomic imbalances and take care of their cost competitiveness. However, in retrospect we can see that both the policy rules and the market forces failed in this task. The assumption of the disciplinary power of the market forces was based on the theory of rational operation of self-regulating and efficient financial markets, a hypothesis prevailing among most European decision-makers and their economist advisers – as well as the mainstream economics around the world. The obvious lesson is that the institutions and incentives have to be designed so that they help orientate the market forces to meaningful directions – you may call it ‘market discipline by design’. This criticism and the lack of focus on the financial system and its systemic shortcomings have been also directed against the analytical construction of the Maastricht Treaty and the Stability and Growth Pact. This is how the political economist Waltraud Schelkle has put it: Just as the Maginot line was the product of an outdated theory of warfare, so the macroeconomic constraints of Maastricht reflected the insights of optimal control theory with its focus on credible commitments to prudent policy rather than the management of financial risks.3

This passage pinpoints well the essential weakness of the original architecture of the EMU, namely the failure to combine effective crisis management tools with the emphasis on preventive instruments – be they rules-based or market-based. The combination of crisis prevention and crisis management dimensions in the institutional architecture of the monetary union is a far from trivial task. However, it is an essential one, and the more so the less perfect are the mechanisms of crisis prevention. Furthermore, the EU's Stability and Growth Pact that was supposed to maintain fiscal sustainability in the Member States, along with market discipline, was watered down right at the first opportunity, when Germany and France flagrantly breached it in 2003–04, supported by the Italian EU Presidency of that time. This experience caused long-lasting credibility problems for the economic governance of the euro.

I.  Market Discipline The notion of market discipline commonly refers especially to rising government bond yields after a weakening, or in the extreme case, loss, of investor confidence in the sustainability of the general government finances or debt servicing capacity of a country. Finland, for one, has experience of this, as we may recall from the years of Finnish depression during the 1990s. In 1992–93, the Finnish government’s access to market funding was at risk of drying up and Finnish bond yields rose very high compared to their German equivalents,

3 W Schelkle, The Political Economy of Monetary Solidarity: Understanding the Euro Experiment (Oxford, Oxford University Press, 2017) 199.

Economic Governance in a Changing Union  85 for example. The mechanism, or even a mere threat of its operation, could enforce the ­long-run budget constraint on an economy and prevent it from excessive borrowing. Taken to the extreme, the disruption of investor confidence may cut a country off from market funding completely as investors start to shy away from its debt instruments. This happened when Greece, Ireland and Portugal drifted into a sovereign debt crisis and had to resort to emergency financial assistance from the euro area in 2010–11. Italy and Spain also came very close to such a buyers’ strike in 2011–12. In the summer and autumn of 2018, Italian 10-year bond yields climbed close to 4 per cent, with the interest rate spread against German bonds widening to almost 340 basis points, which may be seen as an early warning signal by the market, although remaining far from the peak witnessed in 2011–12 when the bond yields were as high as 7 per cent. It can be deemed that the market reaction played its role in these cases, as a force prompting economic adjustment, but it was also seriously belated. The pattern is familiar from the experience of destabilising ‘sudden stops’ which have occurred ­recurrently in the capital flows to emerging economies at least since the ­beginning of the 1980s.4 Prior to the financial crisis, when the euro area witnessed a build-up of macroeconomic imbalances, not least in response to private sector debt accumulation, the operation of market forces was not very effective. In retrospect, we can see that investors were obviously mispricing risk as they failed to penalise borrowers for taking on excessive debt, which should have been reflected in lower demand for high-risk debt instruments and higher interest rates. The mispricing of risk in those years was visible on two fronts: US mortgage-based securities and Southern European government bonds. In the United States, poor-grade subprime mortgages were packaged into broader instruments, which was supposed to make them safer through diversification and tranching, but failed to do so. In the Southern Member States of the EMU, investors apparently assumed that the risk of default had been eliminated by the introduction of the single currency. In these Southern states, government bond yields fell close to those of the German government bonds and remained there for a lengthy period of time. As the result, the market forces failed to respond by requiring a higher interest rate on the bonds issued by governments guilty of unsustainable accumulation of private and public debt. When the crisis hit in autumn 2008, markets were struck by panic, and interbank lending was brought to a complete standstill, threatening to drive the global economy into a prolonged depression of the 1930s variety. The central banks responded swiftly by adopting counter-measures, thus coming to the rescue of the global financial system. In 2010–12, the government bonds of even unquestionably solvent euro area Member States were also affected by the flight of investors, which aggravated the crisis further and fuelled a doubledip recession. If this was market discipline in action, it was not working very effectively nor smoothly, a least not from the perspective of society. In fact, this experience shows how financial markets seem to operate in a detrimentally binary fashion, shifting between ‘on’ and ‘off ’, thus reinforcing the upswings and downswings of the economy.



4 P

Guidotti et al, ‘On the Consequences of Sudden Stops’ (2004) 4 Economia 171–214.

86  Olli Rehn

II.  Efficient Financial Markets: Science or Religion? The failure of the market discipline to keep economies on a sound basis is related to the functioning of the financial markets and how they have been trusted too much. The finger has been pointed at bankers and the economic and monetary policy decision makers. However, economic science and the economists also deserve their share of the criticism. Mainstream economics failed to see on what shaky grounds excessive risk taking and lending expansion would lead. According to Paul Krugman, referring to the efficient market hypothesis and other related assumptions, much of the past 30 years of macroeconomics has been ‘spectacularly useless at best, and positively harmful at worst’.5 Earlier, Willem Buiter called the efficient markets/rational expectations type of economics ‘Panglossian’, referring to the philosophy professor in Voltaire’s Candide who believes that we always live in the best of possible worlds.6 According to Paul De Grauwe, one of Europe’s leading economists, Mainstream macroeconomics has become a system of beliefs, some will say a religion, about rational and fully informed agents operating in efficient markets. The accumulation of facts that refute the mainstream macroeconomic models has become so strong that only the most fundamentalist believers will want to cling on to these theories.7

The excessive trust in the functioning of the financial markets was a global phenomenon. At the beginning of the millennium, monetary policy of the US central bank, the Federal Reserve, was based on an almost religious conviction of eternal growth. The justification for this conviction was – in addition to the rapid rise of information technology – the strong growth of productivity in production and services as a result of the ubiquitous utilisation of IT. The growth of productivity was only partly true. And in any case the monetary policy conclusions drawn from the assumed ‘eternal growth’ and ‘bursting the glass ceiling of growth’ were soon proved wrong. The policy pursued by the Fed communicated to the markets that the central bank would not tolerate a downfall in the markets – instead, if necessary, it was prepared to provide protection to asset prices and prevent a decline in the markets by adding monetary liquidity. This was known as the ‘Greenspan Put’, which implied a fair degree of moral hazard. It was related to the belief that, in the context of rapid and persistent economic growth, not only a high level of asset prices but also full employment could be achieved, thanks to the strong productivity resulting from the IT breakthrough, without constraints on economic policy from accelerating inflation. However, every party must come to an end eventually. After the financial crisis had erupted, Alan Greenspan, who had led the Federal Reserve for 20 years, bemusedly but tragically admitted in a Congressional hearing in 2008 that his theory had indeed a casting defect: the markets were not self-regulating after all.

5 P Krugman’s Lionel Robbins Lecture at the LSE in June 2009. Quoted in ‘Dismal science’ The Economist (13 June 2009). 6 W Buiter, ‘The Macroeconomics of Dr Pangloss: A Critical Survey of the New Classical Macroeconomics’ (1980) 90 The Economic Journal 34–50. 7 P De Grauwe, ‘The Crushing Responsibility of Economists’ Financial Times (29 July 2009).

Economic Governance in a Changing Union  87 In light of such confessions, the onus is especially on the theory of efficient markets, based on the very straightforward assumption that the prices not only of goods, but also of financial instruments, can always be expected to be at the correct level justified by the fundamentals. But what if this assumption does not hold true? This is what the 2017 Nobel Laureate and one of the founding fathers of behavioural economics, Richard Thaler, thinks: ‘My conclusion: the price is often wrong, and sometimes very wrong.’ Referring to the US home price and housing bubble, he points out that in the United States, where home prices were rising at a national level, some regions experienced especially rapid price increases and historically high price-to-rental ratios. If both lenders and homeowners had been perfectly rational ‘Econs’ instead of behaviourally bounded ‘Humans’, they should have behaved rationally and noticed those warning signals, and expected a fall in housing prices. But none of this reversion happened; instead, people continued to behave ‘as if what goes up must go up even more’.8 The result is now known. In case we concur with the analysis of behavioural economics, we should have serious reservations about the core belief of the efficient market hypothesis that ‘the price is always right’. This would simply undermine the key assumption of the 1980s financial market liberalism, that financial markets always function efficiently and are able self-regulate themselves. When one recalls the turmoil on Wall Street in 2007–09 and its long shadow on the world economy, it seems even quite reckless and irresponsible to expect that the markets always function efficiently and can equilibrate themselves rapidly. This misadventure relates not only to the study of finance but also to macroeconomics. Richard Thaler has stated that if he were to choose the field of economics that would most benefit from adopting behaviourally realistic approaches, it would be the field where behavioural approaches have had the least impact so far: macroeconomics. As he puts it: ‘John Maynard Keynes practiced behavioural macro, but that tradition has long since withered.’9 I tend to agree with Thaler – many misadventures might have been avoided if behavioural approaches had had more impact in macroeconomics. A better understanding of Humans (as opposed to Econs only) is essential in the making of monetary and fiscal policy which are vital for any country’s welfare. Besides Keynes, the critics of excessive financialisation have rediscovered Hyman Minsky, and rightly so. Before the crisis, Minsky (1919–96) was a nearly forgotten economist whose main thesis was that stability itself contains the seeds of instability. He postulated that protracted economic growth creates such high expectations of future growth that it induces rapid lending expansion. Minsky argued that financial markets create their own internal dynamics which cause waves of credit expansion and, as a consequence, an inflation of goods and asset prices, which in turn leads to credit contraction and a decrease of asset values, that is, deflation. Even though, according to Minsky, the goods market has a natural tendency to find an equilibrium, the financial markets have an in-built inclination to cause forceful rises and equally violent collapses.



8 R

Thaler, Misbehaving. The Making of Behavioural Economics (London, Allen Lane, 2015) 250–53. 348–49.

9 ibid

88  Olli Rehn The analysis of the financial crisis has given birth to a rapidly burgeoning production line of economic policy literature.10 Minsky has been vindicated in the debate. In autumn 2008, after the collapse of Lehman Brothers, the concept of the ‘Minsky moment’ surfaced in the discussion on economic policy. It refers to the moment where lending suddenly turns from increase to decrease, and then surges into a downward spiral. This may lead to a liquidity trap postulated by Keynes in his general theory, and to a recession or even a downright depression of the real economy. Minsky is merciless when discussing the movers and shakers of economic policy of his own time, the 1960s and 1970s, who in his view undermined the economic theory and policy revolution started by Keynes. Rejecting its fundamental assumption, that financial markets could turn unstable, did in Minsky’s view erode the very foundation of Keynes’ entire General Theory. Leaning on the theory of efficient markets, which broke through in the footsteps of the rational expectations theory in the course of the 1970s, also made the neo-Keynesian synthesis of economics a culprit in Minsky’s mind. In Minsky’s view, the reinterpretation of Keynes’ theory emerging at the time, and its application of the efficient financial market hypothesis, turned the radical Keynes into an apostle of new conservatism, which was used to promote the inequality of incomes and consumption that then took place at the expense of social justice. An illustrative anecdote comes from a smart critic of financial capitalism, George Cooper, who is not a Wall Street Occupier or a theoretician at a Marxist study group, but a finance-sector professional with a successful investment background – a London investment banker who has worked at Goldman Sachs and Deutsche Bank. Cooper describes how Minsky was forgotten in the economics discussion after the mid-1970s. Cooper says he purchased his own copy of Minsky’s ‘sold-out classic’ – which it was, up until the 2008 reprint – in a Pennsylvania library where it had lain without any readers since 1977, branded ‘REMOVED FROM USE’. Minsky may have been described as an eccentric character – I never got to know him personally, so can’t judge – and he was a researcher who was in his time not famous or even known in the mainstream of economics. He did not teach at a top-tier university, but in the Midwest at the relatively peripheral Washington University in St Louis. One lesson to be drawn from this is that the value of no person’s work should be depreciated merely on the basis of its ‘peripheral’ origin. Krugman describes his relationship with Minsky by stating that today many economists, Krugman himself included, acknowledge the groundbreaking significance of unstable financial markets. Krugman continues his intellectual self-flagellation: ‘Yet these days many economists, yours truly very much included, who were relative newcomers to Minsky’s work, wish that we had read it much earlier.’11

10 Among the critical school of thought, the most convincing contributions comprise G Cooper, The Origin of Financial Crises: Central Banks, Credit Bubbles and the Efficient Market Fallacy (Petersfield, Harriman House Ltd, 2008) on the general causes of financial crises and the reprint of Minsky's classic work, HP Minsky, John Maynard Keynes (New York, McGraw-Hill, 2008), originally published in 1975. Both of these works are largely building on Keynes’ milestone volume The General Theory of Employment, Interest and Money (1936) and reinterpreting it. 11 P Krugman, End This Depression Now (New York, WW Norton, 2012) 43.

Economic Governance in a Changing Union  89 I join Krugman and count myself into the group of reborn Minskyites. Although I have always had an instinctive doubt against any excessive trust in the efficient and balanced functioning of the financial markets, I had not previously found sufficiently convincing analytical justifications for it in economics literature. My own doubts were fuelled by my experience in the constant heat of high-pressure crisis management as policy advisor to Prime Minister Esko Aho during the Finnish banking crisis 1992–93, which was a rather traumatic experience for all of us who went through it – even if training-wise certainly an educating one, which may be taken as a very perverse silver lining with a view to my later duties. It was learning by doing and included eg the creation of a stability fund and an asset management company. In his search for culprits to the financial crisis, Cooper puts the blame on a broader group, stretching from the decision-makers of economic policy to the international academic community of economists: If blame must be laid anywhere it must be placed at the collective feet of the academic community for having chosen to continue promoting their flawed theories of efficient, self-regulating markets, in the face of overwhelming contradictory evidence.12

Cooper hangs much of the responsibility around the neck of Paul Samuelson, one of the prime Nobel Laureates in Economics. In his seminal and hugely influential textbook, of which the first edition appeared already in 1948, Samuelson equates the functioning of the financial markets directly with the functioning of the goods market: ‘What is true of the market for consumers’ goods, is also true of market for factors of production such as labor, land and capital.’13 But what if that is not true? This would undermine the crucial assumption of market liberalism that financial markets, too, always function efficiently and regulate themselves. Cooper does not count on the ability of the markets alone to lift the economy from a recession and he regards the belief in the markets’ self-correction as a form of social Darwinism which could have led to a deep depression. Neither does he believe in massive debt-driven interest-rate stimulation, which he suspects would lead to another credit bubble. Instead, Cooper (in his 2009 book) recommended letting inflation loose to revitalise the economy – Ben Bernanke called this remedy ‘helicopter money’. Various forms of unconventional monetary policy, even if not helicopter money, have since been deployed in most large economies in the world in the last decade. In fact, despite the massive unconventional measures in the past decade by the leading central banks, the advanced economies suffered for a long time from persistently low inflation, or ‘low-flation’. In 2013–14 in the eurozone there was even a serious danger of deflation. The latter threat was successfully foiled by the ECB’s decisive launching of l­arge-scale asset purchases in 2014–15, and the spectre of deflation disappeared soon after. But the rate of inflation in the euro area has continued to be low in a very sticky manner, and core inflation in 2014–19 was hardly at 1 per cent, while the ECB’s price stability target is ‘below but close to two percent’. 12 G Cooper, The Origin of Financial Crises: Central Banks, Credit Bubbles and the Efficient Market Fallacy (Petersfield, Harriman House, 2008). 13 P Samuelson, Economics. An Introductory Analysis (London, McGraw-Hill Publishing, 1951) 38.

90  Olli Rehn

III.  Keynes’ Third Way and the Limits of the Market The apparent failure of markets brings us to the heart of economic-political philosophy and the great analytical divide in economics. Milton Friedman, the founding father of monetarism, and his followers swear by efficient markets. Keynesian theory, on the other hand, regards financial markets as inherently unstable and investors as driven by ‘animal spirits’.14 Who draws the longer straw? And what could be the consequences for economic policy? To counter the instability that is built in financial capitalism, and which manifests itself in cyclical fluctuations, Keynes and Minsky proposed that the government should manage productive public investment in a countercyclical way – even to the point of socialisation of investment. This would obviously imply a larger role for the state, although entrepreneurship and the market economy would otherwise be allowed to operate freely. The prescription resembles the New Deal of President Franklin D Roosevelt in the early 1930s, with the famous Tennessee Valley investment programme and including the financial regulatory reforms in 1933–34, such as the setting up of the Federal Deposit Insurance Corporation, to prevent bank runs, and making the Glass-Steagall Act to separate retail and investment banking. Paul De Grauwe ponders the pendulum swing between the market and the state in his small but weighty book The Limits of the Market.15 He makes a strong case for mixed economies, for an economics of balance. While recognising the evident benefits of market mechanism, he lists examples of the limitations of the market economy: income inequality may undermine the legitimacy of the market economy; the herding behaviour of financial markets may lead to instability; climate change is a result of neglecting economic externalities. De Grauwe also distinguishes between two approaches to long-term economic development, the linear and the cyclical. Linear change is embodied in the theories of Karl Marx, Karl Polanyi and Joseph Schumpeter. These political economists analysed capitalism’s development path and transitions to new societal models, which in their theories follows a linear order and moves in stages. By contrast, De Grauwe offers a cyclical interpretation: the dominant economic ideology shifts periodically, dominates for a while, and then is challenged and defeated. He argues that a critical turning point emerges whenever the dominance of the market or the state becomes so overwhelming that it eliminates the other’s countervailing power and leads to an unhealthy hegemony over the economy. In my view, however, pitting the state and the market simply only against each other does justice to neither of them. In reality, instead of only competition between the two, there is a strong degree of complementarity. As seen from the collapse of ‘real socialism’, the state cannot provide good life for its citizens without the market and a working price system to allocate resources efficiently from the society’s point of view. At the same time, the market cannot truly function well without the state that enables free enterprise, protects property rights, guarantees legal contracts and corrects market failures.16 14 At least if one follows the interpretation of Minsky rather than that of Samuelson. 15 P De Grauwe, The Limits of the Market. The Pendulum between Government and Market (Oxford, Oxford University Press, 2017). 16 For a more thorough discussion on the complementarity of the state and the market, see eg J Tirole, Economics for the Common Good (Princeton, Princeton University Press 2017) 160–61.

Economic Governance in a Changing Union  91 Rule of law is a basic feature of the democratic state and a prerequisite for a true market economy. In the European political model, it is supplemented by the pursuit of social justice and the aim of relative equality of income through redistribution – this is why the modern European state is by and large regarded as a social market economy, a concept also enshrined in the EU Treaties. In the social market economy, the task of democratic politics is to set the rules of the market and open up civic development for every person. Even though simplified, De Grauwe’s vision of the relative roles of markets and public policy as a pendulum swing feels more realistic in light of the previous century’s empirical experience than most explanatory models of political economy based on the linear interpretation. He notes that wide swings between state and market dominance have occurred over the past two centuries and asks whether this oscillation is likely to continue. If it does, the expansion of the market over the last three decades, especially in the form of globalised financialisation, would lead to the state reasserting a stronger role in economic development. In some ways the backlash against economic globalisation and the rise of political populism in the United States and Europe can be seen in this light. When making his case, De Grauwe compares the Great Depression of the 1930s and the Great Recession of the late 2000s. He recalls that both periods saw the state starting to constrain the market and strengthen the role of the public sector in managing the economy. Growth and employment in the global economy, however, recovered significantly faster after the 2008 financial crisis. De Grauwe credits this remarkable achievement to the contribution of economics. Its diagnoses of the causes of the financial crisis were largely correct, and the resulting monetary and fiscal stimulus policies, implemented with international policy coordination, helped prevent a deflationary cycle and restore overall demand. This is a sound reminder of the importance of economics and why, despite the criticism in recent years of the inability of economists to predict the financial crisis, we certainly still need the dismal science. Indeed, one lesson learnt from the crisis is that while it is important to recognise the second-best constraints of decision-making in a given institutional context, at the same time it is of paramount importance that economics and the economists continue to argue for the first-best outcomes. Economics and the economists can provide valuable input on how to pursue the ‘common good’ for the society and citizens, through their analyses that combine economic theory, empirical evidence, statistical methods, and also historical methods. The study of economic history and political economy are essential elements of a well-informed overall research programme. While there is a normative content in economics in the welfare theorems and economic efficiency, economics cannot substitute for value judgements. Democratic politics is the sphere where the values compete, and the democratically elected politicians have the right and responsibility to take the value-based decisions. Jean Tirole, the 2014 Nobel Laureate of Economics, has said, ‘Economics is a science of the means, not of the ends.’ For him, the role of economists is ‘not to make decisions, but to identify the recurring patterns structuring our economies, and to convey economic science’s current state of knowledge’.17 Yet economic policy is never made in a social vacuum. Keynes was no technocratic theoretician, but a profoundly social animal who persistently pushed his economic and social programme. He conceived this programme as having three goals: economic efficiency, social



17 ibid

8 and 164.

92  Olli Rehn justice, and individual freedom. He wanted to safeguard the Western way of life and its freedoms, and save it from both socialism and capitalism, which is why he welcomed the third way. To promote these values, Keynes built his General Theory. This vision constitutes the raison d’etre and foundation of macroeconomics and still remains a great inspiration.

IV.  Market Discipline or Spending Rule? After these reflections, where should one’s loyalties lie in the pursuit of sustainable general government finances: in market discipline, or a spending rule? Even after the post-crisis reforms of the EMU, this question retains great relevance today. The answer is anything but simple. In the public debate, market discipline is often cast in opposition to the type of rulesbased stability based on pacts and agreements. It stands to reason that the trust in market discipline must be based on the reliance in the theory of efficient markets. This position has been taken especially by the advocates of market liberalism who would claim the mantle of Milton Friedman. By contrast, Keynes and Minsky took the view that, unlike the markets for goods, financial markets are not always well geared towards achieving a stable equilibrium. In fact they can be destabilising. They argued that ‘animal spirits’ – a term for the behaviour in markets, such as herding, that is ill-explained by economic fundamentals and classical rationality – typically aggravate upswings and downturns, feeding booms and bubbles that, on bursting, can compromise the stability of the financial and banking systems and, by extension, impact adversely on real economic growth and employment. The particulars of the 2007–12 financial and sovereign debt crises make it hard to defend the Friedmanesque position of financial market efficiency – or even the claim that it is beyond reproach. Rather, the Keynesian/Minskyan interpretation of the financial markets may be more accurate and truthful. What conclusion is to be drawn from this? If the market does not work according to the claims of the optimists, then surely market discipline cannot work either? Or, that under normal circumstances, whatever these may be, the laws of supply and demand also apply to the financial markets but, under exceptional circumstances, the markets can fluctuate heavily as the result of herd behaviour and other phenomena that aggravate market upswings and downswings. I tend to embrace the latter, more moderate view. Many are inclined to argue that fiscal policy rules are of no use whatsoever, and that only market discipline matters and it matters very little in the current context of very low inflation and interest rates. It is not as simple as that, however. Let us consider this in light of the history of EU fiscal policy rules. They were designed to ensure the sustainability of general government finances and allow sufficient room for fiscal policy manoeuvre within the scope of this. The rationale of the fiscal rules in the EMU lies in the recognised unreliability of the mechanisms of market discipline. The committee set up to prepare the EMU, headed by the President of the Commission Jacques Delors in 1988–89, had a very cogent understanding of the limitations of market discipline. This is demonstrated by the following quotation from its final report: Experience suggests that … access to a large capital market may for some time even facilitate the financing of economic imbalances. Rather than leading to a gradual adaptation of borrowing

Economic Governance in a Changing Union  93 costs, market views about the creditworthiness of official borrowers tend to change abruptly and result in the closure of access to financing. The constraints imposed by market forces might either be too slow and weak or too sudden and disruptive. Hence countries would have to accept that sharing a common market and a single currency area imposed policy constraints.18

The weakness of market discipline before the crisis may have been partly caused by the (more or less) rational expectations of bailing out the Member States, even though the EU Treaties banned that. This lack of credibility may have created distorted incentives and contributed to the mispricing of risk in sovereign bonds. But as ‘the market forces’ lack any joint accountability, they cannot easily be held responsible for this failure. Moreover, the market forces are not a collective – if the very concept of ‘market forces’ is even accepted – but the markets by definition consist of innumerable individual participants. If we need fiscal rules, they should be well designed. In the monitoring and interpretation of the Stability and Growth Pact, decision-makers for a long time focused on (structural) fiscal deficits. Governments did not pay adequate attention to the level of debt prior to the financial crisis, and in some countries, debt levels remained high despite favourable developments in the macroeconomy. During the recession that was triggered by the crisis, debt levels rose strongly, reflecting stimulus measures and the weakness of the macroeconomy, and in the most distressed countries risk premia increased strongly. This caused a negative spiral, in which several countries had to eventually tighten their fiscal policy, despite a difficult cyclical situation. As a response to these problems, the EU’s fiscal framework was reformed during the crisis, particularly in 2010–11. At that time, I was EU Commissioner responsible for Economic and Monetary Affairs and presented the new fiscal rules (six legislative measures or regulations, referred to as the ‘Six-Pack’) to the European Parliament and the Council which, following lengthy negotiations, reached an agreement in December 2011. The new rules entered into force before Christmas that year. Another institutional development of those years was the creation and subsequent reorganisation of the crisis management capacity. The temporary European Financial Stability Mechanism/Facility was born by Caesarean delivery in May 2010. The van Rompuy task force, in its report of 21 October 2010, recommended the establishment of a permanent crisis management mechanism, which the Commission had been calling for. The Eurogroup endorsed the idea in November 2010, and the European Council took a decision in principle on it in December 2010. This led to the founding of the permanent European Stability Mechanism, ESM. Moreover, the European Council agreed to amend the EU Treaties with the simple procedure to create the legal base for the ESM. The idea of having a crisis management facility in the EMU was an anathema to some people who thought it was in contradiction of the no-bailout clause of the FEU Treaty and would lead to dangerous moral hazard. The consistency of the ESM with the provisions of the Treaty was tested in the ECJ in the case Pringle v Ireland, with an important result positive for the stability of the euro area.19 How well has the reformed architecture of the EMU worked after the crisis? In the EU countries, general government deficits have declined notably since 2012, that is, since 18 Committee for the Study of Economic and Monetary Union, Report on Economic and Monetary Union in the European Community (Luxembourg, Office for Official Publications of the European Communities, 1989) 20. 19 Case C-370/12 Pringle EU:C:2012:756.

94  Olli Rehn countries started to conduct fiscal policy based on the new fiscal rules. In 2009–10, as a result of the crisis and the important fiscal stimulus programme, the aggregate general government deficit of the euro area was very large, ie 6–7 per cent. By 2013, it was reduced to 2–3 per cent on average. The deficits have fallen below 1 per cent in 2018–20. At the same time, general government debt to GDP ratio first stabilised and started to shrink since 2018. Macroeconomic improvements have played a role in this outcome: higher economic growth boosts tax revenue and thus facilitates the servicing of debt, while lower interest rates reduce loan-servicing costs. Nevertheless, in light of the facts, it would be misleading to say that fiscal policy rules did not or do not matter. A firmer control of government expenditure, reflecting the new fiscal rules, has played a key role in balancing public accounts in the euro area, irrefutable evidence of which is shown also by statistics. A former Belgian government minister, who was in Prime Minister Elio de Rupo’s Cabinet in 2011–13, recently told me that the external pressure created by the Commission played an important role in the fact that Belgium started to correct the course of its fiscal policy and started to implement structural reforms in the labour market and in the pension system. What was the rationale behind the Commission’s actions? The EU’s new fiscal policy rules. It is easy to pick apart the rules, but is it worth throwing out the baby with the ­bathwater? That said, the existing framework is undeniably broad and inconsistent. This makes the interpretation of the current rules on the fiscal space too complicated and difficult to anticipate. The rules can and should be streamlined and developed. A European Commission proposal put forward in early 2018 suggested the introduction of an expenditure rule as a basis for monitoring public expenditure in the EU countries. According to the proposal, the growth rate of public debt should be adjusted to the rate of potential economic growth. This corresponds to the spending limits-based system in Finland. Many other countries, for example the Netherlands and Sweden, adopted such an expenditure rules and with good results, a long time ago. The current EU rule focus on the structural budget balance, the measurement of which is subject to a considerable level of uncertainty because of the difficulty of determining the deviation of the GDP from its potential (equilibrium) path. This hampers the usefulness of the structural deficit as a target variable. An expenditure rule would serve better as a guiding principle for fiscal policy than the structural budget balance. An expenditure rule to be followed directly when drawing up budgets could also strengthen national ownership. If designed well, it can also better enable counter-cyclical fiscal policy, in line with symmetric Keynesianism. THis is another justification for giving such rules a more prominent role.

V. Conclusions The dichotomy between rules and market discipline is overstated. Both are needed, also in the regulation of public finances in the monetary union. At best, rules and market discipline support and complement each other. Rules must be designed in such a way that they anticipate and ‘model’ a well-functioning market discipline, which would reinforce them both.

Economic Governance in a Changing Union  95 Moreover, rules must focus on the sustainability of the real economy and public finances, providing Member States with more room for manoeuvre in a downturn or recession. Under normal circumstances, fiscal rules should be able to keep euro area finances on such a sound footing that market discipline and debt restructuring would only act as strong but remote deterrents – useful as deterrents but nevertheless such that would not often be resorted to. To avoid any misunderstanding: I support the social market economy and have confidence in that markets are better than any other model of economic organisation for generating efficiency and thereby improving overall wellbeing. This applies particularly to the markets for goods and services. In contrast, the operation of the financial markets is characterised by uncertainty and occasional herd instincts, the curtailing of which requires strong regulation and financial supervision. Budgetary policy deserves a steadier guide than that. In other words, the market is still a good servant but a bad master. And it is a servant that we must ever be mindful of.

96

part ii The EU’s Judicial Actors: Evolving Roles

98

7 Judging at the Court of Justice of the European Union Is there a Need for Dissenting Opinions? VASSILIOS SKOURIS

I.  Seriatim, Dissenting and Per Curiam Opinions It was always amazing to observe how successfully common and civil lawyers and judges worked together in the Court of Justice of the European Union. That this synergy seems to come to an end because of the apparently unstoppable and imminent Brexit, is absolutely regrettable. On the other hand it is exactly this synergy that incites us to ask how the mechanism can function notwithstanding the fact that its components are of a different nature and belong to different legal cultures. Concerning the question to what extent the personal views of judges and their specific contribution to the judgment of their court are visible, it is well known that there are different ways of deciding and announcing the outcome of legal disputes. First, there could be only seriatim opinions, ie a collection of opinions from all judges, without a position of the court as a whole. Second there could be an opinion of a majority of judges (either signed or unsigned), along with any concurring or dissenting opinions. Finally there could be a single unsigned opinion with no permitted dissent, a so-called per curiam opinion.1

A.  The ECJ: Per Curiam Opinions Starting with the European Court of Justice (ECJ or Court), it is clear that the judgments of that Court are published in a form that is typical for per curiam opinions. The judgment contains the composition of the Court in the specific case, ie the Grand Chamber of 15 judges, the Chamber of five or of three judges, by mentioning the President of the specific formation, the participating members and the judge-rapporteur without any other indication.2 This means that one can identify who has participated in the particular



1 MD

Kirby, ‘Judicial Dissent – Common Law and Civil Law Traditions’ (2007) Law Quarterly Review 1. from the participating judges, the Advocate General of the case is also always mentioned.

2 Apart

100  Vassilios Skouris ­ rocedure, but not how the different members have voted. The decision expresses the will p of the majority of the respective formation, even if the judgment – as I will try to explain later – should be regarded as a collective work of all the members. To sum up, the information received is limited, the famous ‘secrecy of deliberations’ does not permit the disclosure of whether the judgment was unanimous, or if this was not the case, which judges formed the majority and the minority, and what were the reasons for the minority not sharing the verdict of the majority. Concerning the ‘secrecy of deliberations’, it is worth mentioning that it constitutes a fundamental principle of the European judicial system: First, according to article 2 of the Statute of the Court of Justice of the European Union, the new members take an oath before the Court during a formal and public sitting, which includes an obligation to preserve the secrecy of the deliberations,3 and second, this obligation has no expiration date and also applies to retired members regarding the decisions they have taken during their term at the Court. In other words, the judgment of the ECJ constitutes an exact reproduction of the majority’s opinion, whereas the arguments of an eventual minority are not in any way reproduced or communicated. It should be noted that the judge-rapporteur, who is always designated by the President of the Court, maintains this role even if he belongs to the minority, and is invited to prepare the draft judgment by adopting and putting forward the reasoning of the majority. I insist on this particularity, because, in some other legal orders, if the reporting judge joins the minority, he is then replaced or at least formally assisted by a member of the majority in order to present a better draft. In Luxembourg the judge-rapporteur preserves under all circumstances the function he is entrusted with, and thus remains responsible for the final text of the judgment.

B.  UK Courts: Seriatim Opinions By contrast to what happens at the ECJ, judgments of UK courts are based on an individualistic approach.4 In a certain sense they constitute the result of the individual opinions of the participating judges, and are not easily accessible to many civil lawyers. For a civil lawyer the structure of British judgments is unusual, in so far as he is forced to study the different contributions of the court members, which are presented in the first person. This is very characteristic of the British system, whereas in other legal orders that allow dissenting opinions in judgments of collegial courts, the personal contribution of the judges is still not totally visible. The participating judges are normally divided into two groups forming respectively the majority and the minority of the court – and the reasoning for the majority and the minority is presented in a common and global form without entering into the details of the individual opinion of each judge. In other words, the ruling only offers information about the common approach of the majority and the minority in their entirety.5 Things 3 ‘Before taking up his duties each Judge shall, before the Court of Justice sitting in open court, take an oath to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the Court’. Moreover art 35 of the Statute prescribes that ‘the deliberations of the Court of Justice shall be and shall remain secret’. 4 M Todd Henderson, ‘From “Seriatim” to Consensus and Back Again: A Theory of Dissent’, University of Chicago Law School, Chicago Working Papers in Law and Economics No 363, 3–4, 7–14. 5 European Parliament, Directorate-General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Dissenting Opinions in the Supreme Courts of the Member States, 2012, 20–29.

Judging at the Court of Justice of the European Union  101 become more complicated when the majority and/or the minority are not able to share a common reasoning, which means that what is common to the majority or the minority is only the solution of the case and for the rest they are composed of smaller groups with different concurring opinions. It is true that if the method of concurring opinions is taken to extremes, the difference with the UK system disappears and the judgment with many concurring opinions gradually takes the form of a combination of individual positions.

C.  Courts of Member States of the EU To draw a picture of the different options existing in the various European legal orders we should take into account that most courts in the Member States of the European Union (EU) are subject to a regime of almost total anonymity as far as the contributions of individual judges are concerned.6 Even the supreme courts of most of the Member States are obliged to respect the secrecy of deliberations and are thus not allowed to publish dissenting opinions. Referring in particular to the six founding Member States of the European Communities, France, Germany, Italy, Belgium, the Netherlands and Luxembourg, it is from a historical point of view characteristic that all of them were – and still are – reluctant to accept the concept of dissenting opinions in their internal court system. The only noteworthy exception applies to many but not all constitutional courts of the member states of the EU. It is remarkable that due to the special nature of those courts, only constitutional judges have progressively acquired the right to dissent and make their dissent public.7 However, generally speaking, very few Member States provide for the possibility of dissenting opinions to every court or tribunal: a striking example is Greece, where according to the Greek Constitution, judges of all courts are entitled to publish their opinion under their name, and they often make use of this possibility.8 The Greek example is rather surprising, in so far as Greek law has been mainly influenced by the German and French legal systems which do not provide for dissenting opinions of judges. Apart from Greece it appears that in Bulgaria, Cyprus, Denmark, Finland, Poland, Portugal, Romania, Spain and Sweden, constitutional as well as ordinary judges may publish separate opinions.9 Finally, the common law tradition is partially respected in Ireland: while ordinary judges have the right to dissent, this is excluded for judges of Ireland’s Supreme Court in constitutional matters.10 Based on these examples, we can easily come to the conclusion that as regards dissenting opinions, there is perhaps a certain tendency, but not a clear distinction between common law and civil law countries.11 First of all, the publication of separate opinions constitutes the norm for constitutional courts of the member states of the EU including courts of civil law states, such as the German Bundesverfassungsgericht. Second, in some common law 6 European Parliament, n 5 above, 17–20 and 20–29. 7 European Parliament, n 5 above, Table 1 on p 30. 8 According to art 93 para 3 of the Greek Constitution, ‘all court judgments must be specifically and thoroughly reasoned and they shall be pronounced in a public sitting. Publication of the minority opinion shall be compulsory. A law shall specify matters concerning the entry of any minority opinion into the minutes as well as the conditions and prerequisites for the publicity thereof ’. 9 European Parliament, n 5 above, 21, 23, 24, 25, 26, 27 and 28. 10 ibid, 23. 11 J Alder, ‘Dissent in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 237.

102  Vassilios Skouris countries – Malta for example – dissents are totally forbidden, whereas in Ireland dissenting opinions are for the most part admitted, with the exception of constitutional disputes. Third, there are some civil law countries which allow not only constitutional, but also ordinary judges to express and publish their individual opinion in every case. There is therefore a new trend that begins to become evident: although dissenting opinions are more characteristic of common law systems, the right of judges to express and publish individual opinions becomes more and more popular also in civil law countries.

D.  International Courts Moving on now to international courts12 and in particular to a comparison between the European Court of Human Rights (ECtHR) and the ECJ, dissenting opinions are allowed before the Strasbourg Court,13 whereas – as already mentioned – they do not exist in the Luxembourg Court. In reality the ECtHR follows the practice of international courts where traditionally judges may issue individual opinions, which are attached to the judgment of the majority, as it is the case of the International Court of Justice or of the International Criminal Court in The Hague.14 Regarding the frequency of dissenting opinions before international courts, it is worth noting that judges make wide use of their right to publish individual opinions and, as far as the International Court of Justice is concerned, there is a significant trend among national and even more among ad hoc judges to dissent whenever the majority decides against their state.15 In this regard the ECJ is not a common international court, although it is composed like the ECtHR of one judge per Member State. Contrary to what happens in international courts, in Luxembourg there is no guarantee that the judge coming from the Member State involved in the specific procedure will hear the case as a regular or ad hoc judge. Moreover, following the consecutive enlargements of the EU, the probability that the national judge sits in cases involving the state of his origin is already statistically very small, and it is even smaller for the President and the ­Vice-President, who only sit in the Grand Chamber of the Court. Having in mind that the Grand Chamber hears approximately 10 per cent of the incoming cases before the Court, ie about 60 to 70 cases per year regarding 28 Member States, it is easy to calculate how exceptional it is that the President and/or the Vice-President of the Court participates in cases concerning their own Member State.

II.  Arguments in Favour of Dissenting Opinions After these more general remarks it is time to focus on the advantages and disadvantages of the two systems with special reference to the situation before the Court of Justice of the

12 In this regard J Malenovsky, ‘Les opinions séparées et leur répercussion sur l’indépendence du juge international’ (2010) Annuaire colombien du droit international 58. 13 Art 45 para 2 of the European Convention on Human Rights. See also J Alder, n 11 above, 234. 14 Art 57 of the Statute of the ICJ. 15 MD Kirby, n 1 above, 33.

Judging at the Court of Justice of the European Union  103 European Union.16 The arguments presented in favour of each option are numerous, they have a strong historical background and are more or less ‘classic’. To start with the main reasons invoked in favour of dissenting opinions, we should first refer to the need to ensure the independence of judges in the sense of their autonomy from the other members of the court. In a way, allowing the publication of dissenting opinions protects the internal side of the judges’ independence. Second, by expressing dissenting opinions, judges maintain their intellectual integrity and enforce the legitimacy of courts in the eyes of the public, since the publication of dissents helps to strengthen public confidence in the judiciary, ensuring that court decisions are really taken by independent judges. Third, by presenting separately the different opinions, judgments reach higher levels of quality and clarity in their reasoning in so far as majority and minority do not have to negotiate any compromise solutions, but are called to present their respective positions in a pure and conclusive form. Fourth, whenever judgments are delivered ‘in the name of the people’, dissenting opinions enhance the democratic legitimacy of the exercise of the judicial power and, at the same time, render the whole process more transparent. Transparency and openness constitute major arguments justifying the introduction of dissenting opinions. Finally, dissenting opinions incite the courts to further develop the law, they build a forum of dialogue not only in the framework of the same court, but also between judges of higher and lower tribunals. To a certain extent they may even pave the way for future decisions with a different approach to the same problem. Hence separate opinions can be regarded as instruments of continuous debates between judges with positive effects to new developments in law.17 In my view, the supporters of dissenting opinions consider their position as modern and progressive compared to the more conservative approach of those who still oppose the right of judges to make their dissent public. In other words, if justice in general is regarded in a more traditional way, it would have primarily a stabilising function, whereas regarded in a more dynamic way, it would be open to new developments and give adequate answers to current problems.

III.  Arguments Against Dissenting Opinions Turning now to the opponents of dissenting opinions most of them underline in the first place the need to protect the authority of judgments which, once they become final, are binding and have to be enforced. Seen from this angle, the judicial activity aims to stabilise the legal system by producing binding decisions and by re-establishing social peace and legal certainty in specific disputes. Disclosing the existence of divergent opinions among the participating judges might undermine the authority of the decision and give to the losing party the opportunity to question the binding effect of the judgment and even to refuse to enforce it. In addition to that there is a certain risk that some judges could present dissenting opinions even in relatively simple cases, because they want either to gain publicity for themselves or to mark their disagreement with the majority not for juridical, but most probably for ideological or even political reasons.

16 European 17 R

Parliament, n 5 above, 9–16; J Alder, n 11 above, 239–44. Bader Ginsburg, ‘The Role of Dissenting Opinions’ (2010) 95 Minnesota Law Review 1, at 4–5.

104  Vassilios Skouris Second, the absence of dissenting opinions ensures the clarity of judgments and preserves at the same time the collegiality among the judges who are sitting in the case.18 Judgments fulfil their scope not by opening a discussion about the possible solutions of a legal dispute, but by giving a unanimous and definitive solution to it. On the contrary, dissenting opinions may cause confusion as to the correct interpretation of law. One of the problems I personally have with separate and, in particular, with concurring opinions is how to dissociate obiter dicta from the ratio decidendi. In that respect Lady Hale noted in a statement about ‘Judgment Writing in the Supreme Court’ that in order not to detract from the power of the lead judgment concurring opinions should concentrate on certain passages in this judgment and ‘hopefully only obiter dicta rather than the ratio decidendi’. And she continues by admitting that ‘technically a simple concurrence is only agreeing with the outcome and the ratio, and not with everything said along the way’.19 The distinction between obiter dicta and ratio decidendi is already difficult without the presence of dissenting opinions, as long as judges sometimes insist on specific points in the reasoning, although they might not be absolutely necessary. Such points take the form of obiter dicta and should be normally avoided in per curiam judgments. The presence of concurring opinions in the framework of the majority makes this distinction even harder: any discrepancies in the reasoning of the concurring opinions forming the majority raise the problem how to identify the essentials of the ratio decidendi. To mention a typical example of a decision stemming from the United States (US) Supreme Court, I will cite a judgment of 1997, using only the initials of the participating judges:20 K. announced the judgment of the Court and delivered the opinion of the Court, except as to a portion of Part A-1. R. …, St. and So. joined the opinion in full, and B., joined except insofar as Part A-1 relied on an anticompetitive rationale. St. filed a concurring opinion. B. filed an opinion concurring in part. O’C. filed a dissenting opinion in which Sc., T. and G. joined.

With all due respect I do not want to imagine national judges in the 28 Member States of the EU trying to discover or decipher in a similar case the ratio decidendi of the majority’s opinion. The spirit of collegiality is, on the other hand, very important and necessary to ensure smooth cooperation within a court, whereas it could be argued that dissenting opinions, when they are frequently used, might create groups of judges in specific matters, as seems to be the case again in the US Supreme Court. It is often documented that the justices of the US Supreme Court are divided into two groups, a more conservative and a more liberal one. On this basis the outcome of very important decisions especially in human rights disputes or on highly contested social issues can be predicted, given that through the recent nominations of justices the conservative bloc seems to form actually the majority. In this regard, it is interesting to note that judges and commentators have often suggested using dissenting speech sparingly, and that court members should apply self-restraint in that field. A good example is included in the Canons of Judicial Ethics of 1924, which have been adopted by the American Bar Association on the basis of a draft prepared by a committee chaired by the then Chief

18 V Perju, ‘Reason and Authority in the European Court of Justice’ (2009) 49 Virginia Journal of International Law 307, at 366–69. 19 B Hale, Judgment Writing in the Supreme Court (First Anniversary Seminar: 30 September 2010), 4–5. 20 For details see M Todd Henderson, n 4 above, 37.

Judging at the Court of Justice of the European Union  105 Justice William Howard Taft. According to Canon 19, ‘It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision’, and ‘A judge should not yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal’. Furthermore, Chief Justice John Roberts in his 2005 confirmation hearings before the US Senate expressed the hope for greater unanimity among the justices of the Supreme Court, announced his willingness to bring about more consensus and considered it one of his top priorities to reduce the number of dissenting opinions.21 The statistics do not confirm a notable change in the habits of the US Supreme Court.22 On the contrary, it is significant to note that during the period since the Second World War, the rate of cases with dissenting opinions has been almost constant at around 50 per cent. The next point concerns curiously the independence of judges23 and hereby the same principle which has been previously invoked in order to justify dissenting opinions. Here the external side of the judges’ independence is at stake, ie the independence from pressures coming from outside. As long as the position of all judges remains secret, it is easier for them to take their decision based on their own conviction and without any interference from external sources. Even if this argument is not very flattering for judges, as it suggests that they need to be protected against external influence, it reveals the ambiguity of the question of dissenting opinions. The same value – the independence of judges – serves as argument both in favour of as well as against the right of judges to make their personal opinion public.

IV.  Specificities of the ECJ It is not my intention to discuss all these arguments and draw a conclusion by expressing a preference for or against dissenting opinions in general. I firmly believe that it is by far not recommendable to try to give a unique answer to a complicated question, in particular if the opposite systems have a long tradition and apparently function without major problems in the different legal orders. What I am willing to do is to present some elements which should be taken into consideration, if one wishes to explain the reasons for the introduction or rejection of separate opinions of judges. It is of course not a coincidence that all these points have a special connection to the regime applicable in the Court of Justice of the European Union.24

A.  The Number of Participating Judges My first point concerns the number of judges participating and voting in the specific procedure. To take as examples, in the US Supreme Court, the Supreme Court of the United 21 R Bader Ginsburg, n 17 above, 1–3; M Todd Henderson, n 4 above, 42–43. 22 M Todd Henderson, n 4 above, 23–24, 28–29. 23 European Parliament, n 5 above, 9. 24 In the same direction M Wathelet, ‘Opinions dissidentes: la Cour de justice de l’Union européenne sera-t-elle le dernier des mohicans?’, Liber amicorum Antonio Tizzano (Torino, G. Giappichelli, 2018) 1030, at 1031–33.

106  Vassilios Skouris Kingdom or even the majority of constitutional courts, the number of the deciding judges is relatively limited, ie from five to at most nine. Under these circumstances the judgments, even if they are not unanimous, are accessible to the interested reader as long as the majority and the minority do their best to adopt a concise and uniform reasoning allowing the reader to distinguish them clearly. Things become more complicated when courts take decisions with a substantially bigger number of judges: the Plenary of the Greek Council of State is normally composed of 25, and the Grand Chamber of the ECJ of 15 judges. With such figures the difficulty in rendering comprehensive decisions becomes more important, because it is not at all excluded that there might exist a majority and a minority of members, each with two or even more concurring opinions. Let’s now imagine such a judgment and think how problematic it can be to implement it by deducting the authoritative interpretation of law given by the court. I can assure you that judgments some 90 pages long of the Council of State of my home country have exactly this structure and, when they arrived as preliminary rulings in Luxembourg, my colleagues and myself had serious difficulties in identifying the real problem of the cases and give an appropriate answer from the point of view of European law. Of course, nothing is impossible, and we see that with the dissenting and concurring opinions of the Grand Chamber of the ECtHR, which comprises 17 judges.25 Nevertheless, I want to stress the need to keep judgments comprehensible, and for that reason I strongly believe that we should be reluctant to introduce dissenting opinions before judicial panels with a high number of members.

B.  Transparency and/or Clarity Next, I would like to focus on the transparency argument. Is there really a necessity to be informed if there was a disagreement within the court and who exactly expressed a dissenting opinion? While it is – I think – easy to accept that the publication of separate opinions enhances the transparency in general, one should not neglect the fact that this view is not common in many important legal orders. In fact we could even say that the use of dissenting opinions before every court and tribunal is still an exception among the Member States of the EU. Especially for the ECJ, the requirement of clarity of the judgments rendered on the basis of requests for preliminary ruling by national judges is stronger than the need for transparency.26 The judges in the Member States wish to be duly informed of the correct interpretation of EU law and look for an unambiguous answer from the Court. Having in mind that more than two-thirds of the incoming cases before the ECJ are preliminary references, the success of this unique form of dialogue between national and European judges becomes obvious and is based on two elements: the ECJ gives apparently satisfactory and well-founded answers without delaying the procedure before the national court. It is more than doubtful that the preliminary rulings would be equally successful if the judgments of the Court contained dissenting or concurring opinions. The Court is asked to develop the 25 See the reference in n 12. 26 Even V Perju, n 18 above, admits that ‘it is possible that the reception of dissenting opinions from the ECJ, especially given the system of preliminary references, would have complicated the process of implementing the Court’s judgments’ (at 332).

Judging at the Court of Justice of the European Union  107 right interpretation of European law in order for that law to be applied not only to the pending case before the national court, but to all similar cases and by all courts of the Member States. What is needed is clarity and precision. One should imagine for one moment all these national judges who, without being neither specialised in European law nor accustomed to dealing with separate opinions, would be confronted with judgments of the Court containing several and divergent answers to questions on the interpretation of European law. As long as the main task of the ECJ together with the principal scope of the preliminary ruling procedure are to guarantee the uniform interpretation and application of European law, there is little space for experiments with dissenting opinions. That minority opinions are not published in Luxembourg does not mean that they don’t occur, and says nothing about the way they are usually treated. Without revealing any secret, I have to admit that different approaches may arise especially in cases before the Grand Chamber of the Court, whose mission is to deal with the more important cases. Having chaired the Grand Chamber for 12 years I can confirm that we had disagreements among us, but I have sincere doubts if all of them would have led to dissenting opinions. On the contrary, I believe that only in a few cases the members of the minority would have presented real dissenting opinions. Quite often the disagreeing members recognise that the other side – the majority – also has strong arguments.

C.  Active Participation of Dissenters Second, the non-disclosure of dissenting opinions encourages all judges and in particular the members of the minority not to stay silent by refusing any cooperation with the majority, but on the contrary to continue to participate actively in the deliberation in order to influence the reasoning and render the final judgment more widely acceptable. As far as the majority is concerned, its members have a real interest to invite the minority to further cooperate with them by making an effort to deal with the reasons that led the minority to not share the view of the majority. In that way the reasoning of the judgment can be strengthened. Of course that is not always the case. Sometimes, incorporating the concerns of the minority in the decision might lead to a reasoning that is too short or too vague to be convincing. Academics have frequently criticised that fact.27 As one of the remedies for the lack of clarity it is proposed to read the judgment together with the always published opinion of the advocate general who expresses his/hers personal point of view by proposing a full and coherent solution of the case. It is for that reason not surprising that some scholars claim that the opinions of the advocates general alleviate the consequences of the absence of dissenting opinions.28

D.  The Spirit of Collegiality Third and most important, judgments of the Grand Chamber of the Court constitute real collective works of the participating members, as the deliberations take a long time and

27 European 28 European

Parliament, n 5 above, 34–35, and V Perju, n 18 above, 310. Parliament, n 5 above, 35. This approach is not supported by V Perju, n 18 above, 354–56.

108  Vassilios Skouris are rich in ideas. It is not exaggerated to state that the final outcome of the case is normally shared, if not by all members with the same enthusiasm, then at least by a grand majority of them, so that the Chamber can concentrate on the reasoning. In order to prepare the discussion and based on the draft of the reporting judge the other members usually present written notes proposing either another solution for the case or a different wording of specific parts of the reasoning. On the ground of these notes an exchange of views takes place under the guidance of the President of the Court and with the active participation of the judge-rapporteur. One of the main criteria for the discussion is to improve the reasoning in order to allow national judges as well as other European and national institutions to implement the judgment. In this regard even potential difficulties in the translation of certain points into the different official languages of the Court come into play: I remember very well a former colleague reminding us many times during the deliberation to give attention to translation problems and asking to prefer a wording suitable to be understood by common law judges. The spirit of collegiality does not appear only when deliberations go on. There are additional mechanisms to reach common decisions of the Court’s members. This happens mainly when all members (ie judges and advocates general) meet every week in order to distribute the cases to a specific formation of the Court (Grand Chamber, Chambers of five or three judges), and to decide whether further instruction is needed, an opinion of the advocate general is appropriate or a hearing should occur. To all these questions the judgerapporteur presents his/her proposals in a preliminary report. On the basis of this report a discussion takes place among the members – sometimes with different approaches – and gives everybody the chance not only to be informed of all incoming cases, but also to co-determine to a certain extent the decision-making process.

V.  Final Remarks Finally, we must not forget that with the consecutive enlargements of the European Union, especially the accession of the United Kingdom, the home of seriatim judgments, but also Ireland and Denmark in 1973, the issue of dissenting opinions in the ECJ was raised and discussed several times and, most importantly in the negotiations for the preparation of the Treaty of Maastricht. At the intergovernmental conference of 1992 the European Parliament proposed the practice of dissenting opinions to be introduced to the judicial system of the European Communities.29 However, every single time, a decision was taken against introducing dissenting opinions. In the long discussion on the virtues and deficiencies of dissenting opinions one point is particularly remarkable. Whenever academics comment on the ECJ’s regime, they normally end up by asking to change the status quo and permit dissenting opinions mainly in order to improve the transparency of deliberations and enhance the independence of judges.30 On the contrary, I am not aware of statements suggesting to those who generally support

29 Resolution on the Intergovernmental Conference in the Context of the European Parliament’s Strategy for the EU [1990] OJ C324/219, 231. 30 V Perju, n 18 above, 345–74.

Judging at the Court of Justice of the European Union  109 dissenting and concurring opinions to change their minds and abolish the right of judges to publish their disagreement with the majority’s position. One could think that such behaviour of the supporters of dissenting opinions is partial and not absolutely fair to the other side. In any case, the opponents of dissenting opinions take notice of the other option without recommending abrogating the right of the Court’s minorities to express themselves in public. With regard to the European Court of Justice, I would like to point out in my conclusion that our intention was – and I am sure, continues to be – to consent and not to dissent. In order to guarantee the uniform interpretation and application of EU law we need judgments shared by a grand majority of members, we need judgments containing the best possible reasoning and we need judgments permitting to convince national judges and all the other stakeholders (European institutions, lawyers and academics) to follow the decision of the Court. By communicating any eventual disagreements in public this goal would become particularly difficult.

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8 The Future of the General Court Within the Court of Justice of the European Union HEIKKI KANNINEN*

I. Introduction The establishment of the General Court (originally named the Court of First Instance of the European Communities) marked an important milestone in the evolution of the European Union’s (EU) judicial system. Since its creation in 1989, the General Court has undergone far-reaching changes. The General Court’s jurisdiction has considerably increased, along with its size and staff, and its place in the court system has evolved. Reforms are still ­underway, and further changes are impending. The General Court, commentators have argued, has borne the brunt of the adjustments made to adapt the EU judicial system to new situations and challenges.1 The EU judicature at present takes the form of one institution comprising two ­independent courts that cohabit on an administrative and organisational level. There was initially only one court, the Court of Justice, until the General Court was established out of and ‘attached to’ the Court of Justice, later acquiring more autonomy. This chapter focuses on the evolution of the General Court in the European Union’s institutional framework. First to be discussed are the legal consequences of the Court of Justice of the European Union’s (CJEU) status as an institution of the EU (section 2).2 The transformation of this institution into a multi-tiered court system comprising both general and specialised courts is examined next (section 3). Going forward, the General Court is set to lie at the centre of any reform of the EU judiciary, as past reforms already show (section 4). Besides structural reforms, internal measures have already been taken and further are planned to improve the functioning of the General Court (section 5).

* The text was translated from French by Anaël Tchoulfian, to whom the author is particularly thankful. I am also grateful to Sven Frisch, Alain Scaramucci and David Viros for their comments. All views expressed are personal. 1 L Coutron, The Changes to the General Court, in E Guinchard and M-P Granger (eds), The New EU Judiciary, An Analysis of Current Judicial Reforms (Alphen aan den Rijn, Kluwer Law International, 2018) 143. 2 The abbreviation ‘CJEU’ refers to the institution, while the terms ‘Court of Justice’ and ‘General Court’ refer to the two courts currently composing the institution.

112  Heikki Kanninen During his long term at the Court of Justice, Judge Allan Rosas has greatly contributed to the development of the EU judicial system. At the General Court his way of tackling questions relating to judicial reform has always been highly appreciated. Therefore, it seems only natural that this article be dedicated to him.

II.  The Court of Justice of the European Union – An Ordinary EU Institution? A.  The Court of Justice of the European Union in the EU Institutional Framework It is immediately apparent to a careful reader of the EU and FEU Treaties that neither explicitly provides for or mentions the independence and impartiality of the EU courts.3 The CJEU is one of the seven institutions of the Union that constitute its institutional framework. According to Article 13(1) TEU, this institutional framework aims ‘to promote its values, advance its objectives, serve its interests, those of its citizens, and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions’. Those objectives are rather political in nature and it may thus come as a surprise that courts have been entrusted with carrying them out. Questioning this choice is all the more justified that the EU courts’ personal jurisdiction is not limited to persons or bodies of the Union or of the Member States. A natural or legal person from a third country may also be a party to proceedings before the courts of the Union. The EU courts should also be perceived as impartial in these situations. The EU judge is not the judge of the EU’s interest. It is therefore understandable that the EU courts have not derived from Article 13(1) TEU a guiding principle of judicial interpretation. Still, the CJEU contributes to the objectives set out in Article 13(1) TEU through its judicial powers. In that respect, Article 19(1) TEU is perfectly clear that the CJEU ‘shall ensure that in the interpretation and application of the Treaties the law is observed’.4 It follows from Article 19(3) TEU and from Articles 258 to 280 TFEU and the Statute of the Court of Justice of the European Union (CJEU Statute) that the CJEU exercises its functions in judicial proceedings to settle either a dispute (direct actions or appeals) or a question of interpretation of EU law or of validity of acts of the institutions in the context of pending national proceedings (preliminary reference procedure). These dispute resolution functions are at the core of the judiciary’s duties. The other powers of the CJEU, such as the rendering of an opinion provided for in Article 218(11) TFEU, administrative functions or the

3 It must however be noted that the Charter of Fundamental Rights of the European Union, which has the same status as the EU Treaties, provides for a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal (Art 47). 4 The Commission, for its part, ‘shall oversee the application of Union law under the control of the [CJEU]’, Art 17(1) TEU.

The Future of the General Court Within the Court of Justice of the European Union  113 participation in the drafting of certain legislative or regulatory texts, are only incidental to that function. Under Article 13(2) TEU, ‘each Union institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’. According to case law, ‘that provision reflects the principle of institutional balance, characteristic of the institutional structure of the European Union, a principle which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions’.5 From the CJEU’s point of view, this principle can only strengthen its judicial monopoly at the level of the Union. A legislative or regulatory measure taken to influence the conduct of ongoing proceedings would thus be unlawful. That being said, there is nothing to prevent the authors of the Treaties or the legislative power from taking action to change the law as interpreted by the EU courts. Moreover, this principle could be put forward, if necessary, against the CJEU to reaffirm the separation of legislative and judicial powers.6 Like any other EU institution, the CJEU has the power to organise its own internal operations. The Court has interpreted this autonomy broadly, in particular by holding that provisions with legal effects on third parties are not prevented as such from constituting measures of internal organisation.7 Internal autonomy is revealed in particular by the institution’s competence to adopt its own rules of procedure.8 The CJEU has not adopted a comprehensive legal instrument governing its administrative matters although both EU courts have their own rules of procedure. While the rules of procedure of the other institutions organise their administrative operations, the rules of procedure of the EU Courts govern judicial proceedings. They contain provisions that would often fall, in Member States, within the scope of statutory law. It is therefore not surprising that the TFEU provides that they are subject to approval by the Council.9 However, the CJEU plays a substantial role in the development of procedural rules. Indeed, it is the court concerned that establishes its Rules of Procedure and the Court of Justice may request the amendment of the CJEU Statute.10 The CJEU enjoys a relative but important autonomy in the organisation of judicial proceedings. As for its internal administrative organisation, its autonomy is at least as wide as that of the other institutions.11 5 See Case C-409/13 Council v Commission EU:C:2015:217, para 64 and case law cited. 6 In Case C-50/00 P Unión de Pequeños Agricultores v Council EU:C:2002:462, paras 44–45, the Court of Justice itself recalled the limits of the Union judge in interpreting written law unless ‘going beyond the jurisdiction conferred by the Treaty on the Community Courts’. In the present case, these were the conditions laid down by Art 173 of the EC Treaty (currently 263 TFEU) for bringing an action for annulment by an individual. The Court added that although an amendment was certainly possible (in the interest of better legal protection), it was up to the Member States, if necessary, to reform the system of judicial review. 7 Case 58/94 Kingdom of the Netherlands v Council EU:C:1996:171, para 38. 8 Art 232 TEU (European Parliament), Art 240(3) TFEU (Council), Art 249(1) TFEU (Commission) and Art 287(4) TFEU (Court of Auditors). The adoption of the Rules of Procedure of the Court of Auditors also requires the approval of the Council. 9 Arts 253(6) and 254 (5) TFEU. The establishment of the Rules of Procedure of the General Court also requires the agreement of the Court of Justice. 10 Art 281(2) TFEU. The Commission has the same right of initiative but, in practice, the Court of Justice has introduced the requests for amendments. 11 In Case T-88/13 P Z v Court of Justice of the European Union EU:T:2015:393, para 167, the General Court emphasized that the participation of judges in the CJEU’s internal administrative matters contributes to the administrative autonomy of the institution.

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B.  Guarantees of Independence and Impartiality While the CJEU may, at first glance, appear to be an EU institution like any other, the guarantees pertaining to its independence and impartiality are numerous and strong. In this respect, it is particularly important to recall that the members of the CJEU are chosen from among persons ‘whose independence is beyond doubt’.12 The Treaty of Lisbon has also strengthened the monitoring of compliance with the conditions for appointing members of the Court of Justice and the General Court by setting up the panel provided for in ­Article 255 TFEU, which gives ‘an opinion on candidates’ suitability to perform the duties’ of members of the Court of Justice and the General Court. Finally, the members of the courts of the Union cannot be removed, save in exceptional circumstances. Article 6 of the CJEU Statute states that a judge ‘may be deprived of his office … only if, in the unanimous opinion of the Judges and Advocates General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office’. The independence of the CJEU is highlighted by the institution’s strong autonomy regarding its internal organisation in administrative matters but also, although certainly to a lesser extent, in the establishment of procedural rules. Moreover, unlike certain national judges, the members of the CJEU are not subject to disciplinary or ethics control by a specific external body, at least with regard to their judicial functions. However, the CJEU, as well as its members, is not completely excluded from the administrative and financial control exercised by the Court of Auditors, the European Parliament in the context of the observations presented during the budgetary discharge (Article 319 TFEU) and the ­European Anti-Fraud Office (OLAF).13 The only disciplinary measure provided for members of the CJEU is for the case of removal from office (Article 6 of the CJEU Statute). But the CJEU has taken disciplinary control of its members into its own hands. The establishment of a code of conduct for members and former members of the CJEU in 2007, replaced by a new code in 2017,14 was a major step forward in terms of ethics. The President of the Court of Justice shall ensure the proper application of the Code and is assisted by a Consultative Committee that may make its opinion known to the member of the CJEU in individual cases. In the EU system, there is no Ministry of Justice or independent authority governing the management of courts or judicial council. This can be seen as strengthening the independence of the CJEU. That said, the independence of the judiciary is intended to

12 Arts 253(1), 254(2) and 257(4) TFEU. 13 It should be noted that Art 228 TFEU excludes from the competence of the European Ombudsman ­investigations into cases of maladministration by the CJEU in its judicial role and also if the alleged facts are or have been the subject of judicial proceedings. The CJEU is therefore not totally outside the competence of the European Ombudsman. The Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-fraud Office (OLAF) [1999] OJ L136/20 provides that the Office may also carry out internal administrative investigations concerning the members of the institutions (Art 2(1)(2)(b)). As stated in the same Article, the Office’s tasks are carried out within the limits laid down by the Treaties. See also European Parliament and Council Regulation (EU, Euratom) 883/2013 of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 [2013] OJ L248/1. 14 Code of Conduct for Members and former Members of the Court of Justice of the European Union [2016] OJ C483/1.

The Future of the General Court Within the Court of Justice of the European Union  115 protect the independence of judicial action, not to exclude any relationship between the court and other public actors. Thus, for example, the functioning of the CJEU depends on sufficient financial resources. On this point, the CJEU is in the same position as the other institutions. Annually, it submits a proposal to the budgetary authorities (the Council and the European Parliament following preparation by the Commission). As is the case for national judges, the CJEU members may be confronted with the question of whether they can sit in a case in which their impartiality could be called into question. Article 18 of the CJEU Statute provides that if there is a cause of impediment, the judge shall withdraw.15 The texts do not provide, at least for the moment, for a procedure to challenge the participation of a judge for suspected bias. The case law has recognised, however, the existence of such a procedure.16 The duty of impartiality is reaffirmed in the Code of Conduct for Members and former Members of the Institution, which includes an obligation to declare financial interests and provides for detailed rules on the exercise of external activities.17

III.  One Institution – Several Courts: The Emergence of a Judicial Organisation A.  The Judicial Relations between the EU Courts – The Choice of Legal Remedies Until 1989, there was only one court, the Court of Justice of the European Communities. The Court and the institution were one and the same. The situation changed when the Court of First Instance of the European Communities was established in 1988 and started operations in September 1989.18 A further change occurred in 2005 when the Civil Service Tribunal of the European Union was established.19 From 1989 to 2005 the court system of the EU was composed of two courts, and between 2005 and 2016 of three courts. The organisation of courts was beginning to resemble that of the Member States with multitiered court systems comprising courts with general or specialised jurisdiction. This evolution stems from the Treaty of Nice, which introduced the possibility of creating specialised courts. Article 19(1) TEU provides for the Union’s three-level court system: the Court of Justice, the General Court and the specialised courts. The abolition of the Civil

15 Art 18 of the CJEU Statute mentions grounds for preventing the successive exercise, in the same case, of ­different functions and ‘a special reason’, without giving further details. See also Art 16 of the Rules of Procedure of the General Court. 16 See in particular Case T-88/13 P Z v Court of Justice of the European Union EU:T:2015:393, para 44. 17 Code of Conduct for Members and Former Members of the Court of Justice of the European Union, Arts 5 and 8. 18 Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities [1988] OJ L319/1. 19 Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal [2004] OJ L333/7.

116  Heikki Kanninen Service Tribunal as from 1 September 2016 has not led to the disappearance of the provisions of the EU Treaties that allow the creation of specialised courts.20 An analysis of the provisions governing judicial relations between the EU courts shows that they are limited, with certain exceptions, to legal remedies in the same way as in the Member States. The specialised courts shall decide at first instance, in complete independence, the cases which fall within the scope of their jurisdiction under the Regulation establishing them.21 The decisions of the specialised courts shall be subject to review by the General Court by way of an appeal limited to points of law or, where the Regulation establishing the specialised court so provides, by way of an appeal on points of law and fact.22 The decisions of the General Court may be appealed to the Court of Justice. Appeals to the Court of Justice are limited to points of law. The CJEU Statute may specify the conditions and limits to the exercise of the right of appeal [Article 256(1) TFEU]. On the basis of this provision, there is a plan to amend the CJEU Statute to subject the examination of an appeal to the Court of Justice’s authorisation in certain cases.23 This initial admission mechanism would apply to appeals where the dispute has already been examined by an appeal body before the General Court. In practice, decisions taken in trade mark matters by the European Union Intellectual Property Office and also cases in which a decision has been taken by the Community Plant Variety Office and the European Chemicals Agency would be subject to the filtering system. In such cases, the action before the General Court is brought against an appeal body that has already examined the legality of the original decision. These bodies have a certain organisational independence even if they do not qualify as courts and the procedure before them cannot be described as judicial in nature.24 Such a limitation of the legal remedies available before a supreme court to challenge a lower court decision is far from unusual in Member States. No superior rule of law, including in particular Article 47 of the Charter of Fundamental Rights of the European Union or Article 6 of the European Convention on Human Rights, imposes several levels of appeal against EU court judgments in direct actions. In fact, the existing appeal mechanism already constitutes a significant limitation of the right of appeal since the General Court remains the last instance on questions of fact. Therefore, a further limitation of the right of appeal against the decisions of the General Court, as proposed by the introduction of an initial admission mechanism, would not constitute a significant departure from the current system. In principle, no higher norm would prevent the initial admission mechanism from being extended also to matters in which there is no mandatory reviewing body prior to the referral to the General Court. This is rather a question of policy as to the level of 20 On the abolition of the Civil Service Tribunal, see Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union [2015] OJ L341/14 and Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants [2016] OJ L200/137. 21 Art 257(1) TFEU provides that the specialised court may be responsible for hearing at first instance certain classes of action or proceeding brought in specific areas. 22 Article 257(3) TFEU. Decisions of the Civil Service Tribunal could be appealed to the General Court only on points of law. 23 Letter of 26 March 2018 from the President of the Court of Justice to the President of the Council and to the President of the European Parliament with a view to amending the CJEU Statute. 24 See eg in trade mark cases, Case T-63/01 Procter & Gamble / OHIM (Form of soap) EU:T:2002:317, paras 22–23.

The Future of the General Court Within the Court of Justice of the European Union  117 judicial ­protection to be conferred upon applicants, which should be assessed taking into account the specificities of each matter.25 One level of review is normally considered sufficient to guarantee effective judicial protection. Nonetheless, the equality of individuals before the law and the coherence of the judicial system and of the legal order make it necessary for a single supreme court to have a certain degree of control over the decisions of the lower courts. This is particularly necessary if the judicial system has several courts at the same level (eg regional courts). This is also the case in a system as simple as that of the Union, which comprises at present only two courts. Indeed, a complete prohibition against bringing an appeal against certain decisions of the General Court could result in inconsistencies in the case law even if it can be assumed that the General Court would endeavour to adapt its decisions to the case law of the Court of Justice. The purpose of the criteria for initial admission of the appeal is precisely to ensure the unity, coherence and development of EU law. These criteria are reminiscent of the conditions for reviewing decisions of the General Court on appeal (Article 256(2) TFEU) and preliminary rulings of the General Court in ‘specific areas laid down by the Statute’ (Article 256(3) TFEU). This review is possible in the event of serious threats to the unity or coherence of EU law. In this regard, the Court of Justice held in a case concerning a judgment of the General Court on appeal that the review referred to in Article 256(2) TFEU should be understood as meaning that the Court of Justice shall not interfere in the development of case law in civil service matters unless that case law undermines the unity and coherence of EU law.26 The future will show to what extent the General Court will become the final instance in matters covered by the initial admission mechanism. Will the Court of Justice focus more on crosscutting issues of EU law, or will it also maintain control over the development of the case law in these areas of the law? As the Court of Justice will have to decide legal questions in the same fields by means of preliminary rulings (in particular in trademark cases), it is not at all impossible that leave to appeal will be granted, even if the legal question is limited to a specific field. The limitations on the remedies available against the decisions of the General Court and, where appropriate, against the decisions of a specialised court, are rather conventional. Nevertheless, the review of decisions of the General Court given on appeal or in response to a reference for a preliminary ruling is less common.27 The review is not initiated by a party, but by the Court of Justice. It is not a legal remedy in the strict sense of the term but an action in the interest of the law. However, in the relationship between two courts, it is unusual for the higher court to be able, on its own initiative, to review the legality of a ­decision of the lower court. Article 54 of the CJEU Statute contains provisions to coordinate the handling of cases pending before the General Court and the Court of Justice in which the same relief is sought or that concern the same questions of interpretation or the validity of the same act. These provisions allow a case to be stayed pending the other court’s decision. The article also 25 Another question is whether a large limitation of the right to appeal against the decisions of the General Court would require the amendment of the Treaty on the functioning of the European Union. 26 Case C-17/11 RX Commission v Nicole Petrilli EU:C:2015:55, para 4. 27 In the case of preliminary rulings, Art 256(3) even provides for the possibility that the General Court may refer the case to the Court of Justice.

118  Heikki Kanninen provides that, instead of staying the proceedings, the General Court may decline jurisdiction in favour of the Court of Justice, which, in this case, rules at first instance on an action based on Article 263 TFEU. Finally, the same article of the CJEU Statute requires that the General Court shall decline jurisdiction when a Member State and an institution of the Union are challenging the validity of the same act to allow the Court of Justice to rule on those applications. These rules for the coordination of the processing of cases are part of the proper administration of justice and are the expression of normal relations between two courts of different instances.28 In the event of annulment of the decision of the General Court, the Court of Justice shall refer the case back to the General Court if the dispute is not yet ready for final judgment. Article 61 of the CJEU Statute specifically states that the General Court is bound by ‘the decision of the Court of Justice on points of law’.29 This prevents any possibility of a ‘judicial rebellion’.

B.  Two Courts, One Administration – The Art of Living Together The jurisdictional relationships between EU courts do not present any major specificities in comparison to what is typically found in national judicial systems. As in the Member States, these relationships are based on respect for the independence of the lower court by the higher court. But, at the administrative level, the existence of several courts within the same institution is less common. This is especially so since it is not only a question of sharing the same premises and a range of resources but also as a result of common administrative and decision-making processes. This question can be approached from two angles: on the one hand, from an administrative and managerial point of view and, on the other hand, by examining it in the light of the requirements of independence and impartiality of a court vis-à-vis another court. When the Court of First Instance of the European Communities was created in 1989, it was ‘attached to’ the Court of Justice. This could only be understood as evidence of an organisational and administrative dependence on the Court of Justice. The Maastricht Treaty (entered into force in 1993) confirmed the existence of the General Court but maintained that it was attached to the Court. It was only the Treaty of Nice that, in a way, established the ‘independence’ of the General Court by ending its formal ‘attachment’ to the Court of Justice. However, this separation was not a true separation, because both the General Court and the Court of Justice remained part of one and the same institution. In addition, the Civil Service Tribunal was ‘attached to’ the General Court and, according to Article 257 TFEU, if a new specialised tribunal were to be created, it would be attached 28 These mechanisms require that both courts have sufficient information on cases brought in the other jurisdiction. Art 8(3) of Annex I to the CJEU Statute contained similar provisions concerning the relationship between the General Court and the Civil Service Tribunal. Art 8 was repealed when the Civil Service Tribunal was abolished. 29 The same rule was found in Art 13(2) of Annex I to the CJEU Statute concerning referrals to the Civil Service Tribunal. During a transitional period, the reference, following the annulment of a decision of the Civil Service Tribunal by the General Court, was made to a chamber of the General Court other than the one which decided on the appeal, Art 4 of Regulation 2016/1192 (see n 20 above). No rules similar to Art 13(2) of Annex I to the CJEU Statute had been adopted in such cases.

The Future of the General Court Within the Court of Justice of the European Union  119 to the General Court as well. In this respect, the FEU Treaty formally distinguishes the relationship between the Court of Justice and the General Court and the relationship between the General Court and a specialised court. On the administrative and organisational level, the fact that the General Court is no longer attached to the Court of Justice has not itself brought changes. Cohabitation in the same institution is governed in particular by Article 52 of the CJEU Statute. It seems to be based on the premise that officials and agents of the institution are attached to the Court of Justice but that they can provide services to the General Court.30 The CJEU employs more than 2,000 people, most of whom work for both the Court of Justice and the General Court (translators and interpreters as well as administrative staff, particularly in human resources, financial, information and research and documentation services).31 The use of common resources requires intelligent cooperation and coordination between the two courts. It is indeed inevitable that the interests or priorities of the two courts may diverge on some issues in this area; this sometimes gives way to complicated arbitrations. Article 52 of the CJEU Statute provides that the presidents of the two courts shall determine, by common accord, the conditions under which officials and other servants shall render services to the General Court.32 However, this mechanism must be seen in a broader context. The institution’s decision-making process has not changed significantly since its inception. Internal prerogatives regarding administrative, budgetary, legislative, regulatory and disciplinary matters belong to the General Meeting of the Court of Justice. The creation of an administrative committee to which the General Meeting delegated part of its competence was however an important development. It is composed of eight members of the Court of Justice and four members of the General Court. In the management of common resources, the President and the Registrar of the Court of Justice also have important powers. In recent years, the General Court has been increasingly involved in the process of preparing and making administrative decisions that affect the entire institution. This takes place not only within the Administrative Committee, but also within other joint committees or through cooperation between the respective committees of the two courts. One example was the adoption of the new Code of Conduct for Members and former Members of the CJEU by the plenary sessions of both courts.33 The Consultative Committee, provided for in Article 10 of this Code, is composed of the members of the Court of Justice and of the General Court in the event that a member or former member of the General Court is concerned. In addition, the General Court itself has set up its own Ethics Committee, which is responsible for settling ethical issues concerning the members and former members of the General Court. The expansion of the General Court as a result of the doubling of the number of its judges also increases administrative and organisational issues. The General Court has more 30 The same article provides that certain officials or other servants shall be responsible to the Registrar of the General Court under the authority of the President of the General Court. 31 The staff of the members’ cabinets is of course clearly distinct between the two courts. This is also the case for both registries. 32 Art 6 of Annex I to the CJEU Statute provided for provisions similar to Art 52 of the CJEU Statute. The article stated that the Civil Service Tribunal ‘shall be supported by the departments of the Court of Justice and of the General Court’. 33 The first Code of Conduct in 2007 had only been adopted by the Court of Justice’s General Meeting.

120  Heikki Kanninen weight than before within the CJEU. The proper functioning of a court also depends on its administrative management. The cohabitation of two jurisdictions in the same institution, through the sharing of resources, certainly brings positive synergies. However, the adaptation of the current administrative structure to the changing legal architecture has been slow and may still need a further reassessment.

IV.  The EU Judicial System: Seeking a Balance A.  Calling Upon the General Court to Unburden the Court of Justice The Union’s judicial organisation has not escaped the same problems, challenges and discussions as those existing in the Member States. It is mainly the increase in the number of cases that has led to changes in the system. Another important question concerns the types of court and procedure that would be best suited to deal with specific matters. As a solution to the increased workload of the Court of Justice, the option of amending the EU Treaties in order to add new judges beyond the ‘one judge per Member State’ rule (Article 19(2) TEU) has not been seriously considered.34 The number of Advocates General can be and has been increased, but the effect of such an increase cannot be equivalent to an increase in the number of judges as regards the Court of Justice’s overall capacity to issue judgments.35 Moreover, the increase in the number of judges’ staff, particularly legal secretaries (référendaires), has its limits since the judge must be able to direct and monitor their work. The creation of the Court of First Instance was a response to the increase in the number of cases brought before the Court of Justice. A subsidiary reason was the necessity to create the conditions for the proper handling of cases that are voluminous and factually complex.36 The Court of First Instance began its activities with limited jurisdiction, namely direct actions in competition and civil service cases. However, from its inception, it was intended that the Court of First Instance would not remain a specialised court in these matters. ­Article 168a of the EC Treaty, introduced by the Single Act, already provided that direct actions by individuals could be transferred to the Court of First Instance. The objective was clearly to extend the Court of First Instance’s jurisdiction. That is exactly what happened. On the one hand, successive amendments to the EU Treaties have added matters or groups of cases that could be transferred from the Court of Justice to the Court of First Instance (later to the General Court). The actual transfers were made by changes to the CJEU Statute. The Maastricht Treaty made it possible to transfer,

34 See, in particular, the Report by the Working party on the future of the European Communities’ court system, January 2000, report prepared for the European Commission, p 46, ec.europa.eu/dgs/legal_service/pdf/ due_en.pdf. 35 Art 252(1) TFEU sets the number of advocates general at eight but provides that this number may be increased by a Council decision (the current number is 11). 36 Council Decision 88/591, second recital (see n 18 above).

The Future of the General Court Within the Court of Justice of the European Union  121 through the CJEU Statute, all direct actions (including those brought by Member States and Institutions) to the Court of First Instance.37 The Treaty of Nice went a step further by extending the scope of the Court of First Instance’s jurisdiction to potentially encompass preliminary rulings in specific areas determined by the CJEU Statute. It follows from these modifications that, by amending the CJEU Statute, in accordance with the ordinary legislative procedure (Article 281(2) TFEU), all the Court of Justice’s ­jurisdiction at first instance and part of its preliminary ruling jurisdiction may be transferred to the General Court. The areas reserved for the Court of Justice are general jurisdiction in preliminary rulings, appeals against decisions of the General Court in direct actions and the review procedure. The Treaty of Nice, confirmed by the Treaty of Lisbon, therefore provides the means to respond to the Court of Justice’s increased caseload and workload. The Union legislator has not yet exhausted all the available options. The Court of Justice still has jurisdiction over infringement proceedings against Member States, in certain actions for annulment and failure to act brought by Member States or EU institutions38 and in all references for a preliminary ruling. The possibility of a transfer of partial jurisdiction to give preliminary rulings was recently assessed in a Court of Justice report of 14 December 2017.39 The Court of Justice concluded that it was still not appropriate to make such a transfer. It considered that the references for a preliminary ruling were treated expeditiously. It also noted that the number of cases was still increasing at the General Court and that it needed to reorganise itself and adapt its working methods. The Court of Justice also stated that it did not exclude a partial transfer in the future. On the other hand, it has been suggested that jurisdiction over actions for failure to fulfil obligations under Articles 258 and 259 TFEU (infringement proceedings against Member States) be transferred to the General Court. Specifically, by letter submitted to the Council and the European Parliament on 26 March 2018, the Court of Justice proposed to transfer part of those actions to the General Court. That proposal would have concerned only a relatively small number of cases but raised certain questions among the Member States and the Commission. One of these questions revolved around the precise scope of the transfer and the impact of such a transfer on the overall duration of the procedure and the Court of Justice’s workload.40 Consequently, in his letter of 13 July 2018 to the Council and the European Parliament, the President of the Court of Justice requested that consideration of this proposal be postponed. In conclusion, a transfer of jurisdiction to the General Court still appears to offer many possibilities to ease the Court of Justice’s workload. Nevertheless, it is with caution that such transfers have been made and are being considered. It seems that the Court of Justice and the Member States are still waiting for the General Court to mature and prove its worth, particularly in view of its major transformation following the ongoing reform of 2016–19. The transfer of jurisdiction increases the number of cases before the General Court and,

37 Art 225 of the EC Treaty. 38 Art 51 of the CJEU Statute. 39 The preparation of this report was provided for in Art 3(2) of the Regulation 2015/2422 (see n 20 above). 40 See the Commission’s opinion of 11.7.2018 on the draft amendments to Protocol No 3 on the Statute of the Court of Justice of the European Union, presented by the Court of Justice on 26 March 2018, COM (2018) 534 final.

122  Heikki Kanninen consequently, the number of cases subject to appeal or review by the Court of Justice. The mechanism for the initial admission of appeals, as proposed by the Court of Justice (see above), is a reaction to the increase in appeals. It can also be used as an alternative to new transfers.

B.  Ensuring the Proper Functioning of the General Court The Treaty of Nice has introduced the main reform of the Union’s judicial system since the creation of the European Communities. This reform preceded the accession of 10 new Member States in 2004. The new system had to be sufficiently adaptable to cope with future developments in a larger Union. Whereas earlier reforms had focused on ways to help the Court of Justice in view of its increased workload, the Treaty of Nice was concerned with the EU judicial system as a whole. It was no longer sufficient to focus on the transfer of jurisdiction from the Court of Justice to the General Court. It was also necessary to ensure that the General Court could function properly with its expanded jurisdiction. The Treaty of Nice puts the General Court at the centre of the Union’s judicial system. It has introduced mechanisms to deal with the difficulties that arise from the General Court’s increased workload. As a result, the EU Treaties now provide for two separate or cumulative measures. First, the Union legislator may create specialised courts, attached to the General Court, to hear at first instance certain categories of actions brought in specific matters. Second, the Treaties no longer limit the maximum number of judges of the General Court. According to Article 19(2) TEU, the General Court has at least one judge per Member State, but the CJEU Statute may set a higher number (Article 254(1) TFEU). After the entry into force of the Treaty of Nice on 1 February 2003, the creation of the Civil Service Tribunal was proposed by the Commission and subsequently established.41 Its creation was announced by Declaration No 16 on Article 225a of the EC Treaty, annexed to the Treaty of Nice.42 As the number of civil service cases represented more than 35 per cent of the General Court’s cases in 2004 (146 new cases out of 536 cases filed), this matter was indeed the most appropriate one to be transferred to a new specialised court. Its nature was also specific in that it did not concern economic law or business matters, contrary to most other cases brought before the General Court. The transfer of civil service cases, which took effect in December 2005, coincided with the sharp increase in the number of judges at the General Court following 10 new accessions to the Union on 1 May 2004. Even if the new specialised court constituted a new level of jurisdiction, the appeal system was not a three-tiered system. Indeed, the Court of Justice was not accessible to the parties except by means of the review procedure against the decision of the General Court delivered on appeal. 41 Proposal from the Commission, COM (2003) 705 final; Council decision 2004/752/EC, see n 19 above. 42 The Commission had already (before the creation of the Court of First Instance) proposed the creation of an administrative court in civil service cases: Proposal for a Council Regulation (Euratom, ECSC, EEC) amending the Staff Regulations of officials and Conditions of Employment of other servants of the European Communities and establishing an Administrative Tribunal of the European Communities [1978] OJ C225/6.

The Future of the General Court Within the Court of Justice of the European Union  123 While the Civil Service Tribunal rapidly proved to be a success both in terms of the speed of justice and in terms of procedural and case law developments,43 the General Court’s stock was worsening to 1,200–1,300 pending cases, with an average duration of proceedings exceeding two years in 2009. At that time, the General Court considered that a new structural measure was necessary to remedy this unsatisfactory situation. The increase of judges in 2004 and the creation of the Civil Service Tribunal in 2005 were not regarded as sufficient. As the Treaty of Nice offered two options, namely the creation of a new specialised court and/or an increase in the number of judges of the General Court, these options were on the table when a proposal was being drafted within the CJEU. The Court of Justice proposed an increase of the number of judges by 12. In its proposal addressed to the Council on 28 March 2011, the Court of Justice presented the reasons why it considered that the increase in the number of judges should be preferred to a specialised trademark court, which was favoured by the General Court. Approval of the Court of Justice’s proposal would have maintained the Civil Service Tribunal and increased the number of judges of the General Court beyond the number of Member States. The two options introduced by the Treaty of Nice would thus have been used. But the Member States had trouble deciding which of them would have the right to appoint additional judges and in which order they would be entitled to do so. This led to a change in the original proposal. Considering that a reform was necessary and urgent, and that the creation of a specialised court had been ruled out, the only acceptable solution for Member States was to double the number of judges. The abolition of the Civil Service Tribunal was a side-effect of the significant increase in the number of judges on the General Court.44 The deletion was not justified on grounds relating to the functioning of the Civil Service Tribunal. The only argument specific to the Civil Service Tribunal was the difficulty of reaching agreement on the appointment of certain judges in 2014. The dissolution of the EU judicial system’s sole specialised court took place under very specific conditions and within a short period of time. It is therefore premature to draw firm conclusions from it as to the development of the Union’s judicial system. That system has not yet reached a sustainable equilibrium. The uncertainty mainly concerns the organisation of the system under the aegis of the Court of Justice. Although the General Court has confirmed its position as a court of general jurisdiction, its jurisdiction remains subject to change and potential instability. It can be extended but also narrowed. The fate of the specialised courts is not definitively settled since their creation is still possible under the EU Treaties. Moreover, several options exist to determine the nature and extent of review of a first instance decision. In any case, the lessons drawn from the 2016–19 reform of the General Court lead us to anticipate that in the near future, the Union’s judicial system will be based on two courts of general jurisdiction: the Court of Justice and the General Court. Adjustments to the judicial 43 European Union Committee of the House of Lords – Fourteenth Report. The Workload of the Court of Justice of the European Union, 29 March 2011, para 56, publications.parliament.uk/pa/ld201011/ldselect /ldeucom/128/12802.htm. 44 W Hakenberg, ‘The Civil Service Tribunal of the European Union: A Model to Follow as a Specialised Court ?’, in E Guinchard and M-P Granger (eds), The New EU Judiciary, An Analysis of Current Judicial Reforms, n 1 above).

124  Heikki Kanninen system will be made through transfers of competence and adjustments to the remedies and review mechanisms. The number of judges on the General Court will most probably be fixed for a long time at two per Member State. Indeed, it is difficult to imagine that Member States will be able to reduce or increase it by a figure other than that corresponding to their number.

V.  Internal Measures for Transforming the General Court The doubling of the number of judges of the General Court, which will be completed in the autumn of 2019, significantly increased available personnel resources.45 But this observation must be qualified because the General Court’s judicial capacity also depends to a large extent on its staff, especially legal secretaries. If their number does not increase in the same proportion as that of judges, it is not possible to say that the capacity of the General Court will be doubled. Regulation 2015/2422,46 in its tenth recital, states that no additional legal secretaries should be recruited during the last phase of the reform in September 2019 when the last nine (or eight, in the event of Brexit) judges are appointed. This has already led the General Court to decide that, provisionally, some judges may have two legal secretaries instead of three. Regardless, it is undeniable that the General Court will have considerable resources to carry out its jurisdictional functions. Indeed, the evolution of the number of cases filed was different from the estimate when the proposal for the reform of the General Court was introduced in 2011. The increase is less significant and the years 2017 and 2018 even show a slight downward trend.47 Although the General Court’s output, following the arrival of additional judges since 2016, has not yet increased significantly, there is no doubt that its capacity to hand out decisions will increase substantially after the new judges adapt to their new mandate.48 The integration of 28 (or 27) additional judges over three years, in addition to the new judges replacing former judges at the end of their terms, is a major challenge for the General Court in terms of organisation as well as for the stability and consistency of its case law. Still, it is no exaggeration to say that the General Court’s current situation is healthy. The average length of proceedings has decreased significantly, from 26.9 months in 2013 to 16.3 months in 2017. In 2018, the average length of proceedings was 20.0 months. The number of pending cases decreased from 1,508 at the end of 2017 to 1,339 on 31 December 2018. The length of time required to deal with major cases, particularly those involving competition law, can be checked. There is no evidence to suggest that the consistency or quality of case law has been affected. These major changes and those still awaiting the General Court (possible new transfers of jurisdiction, the introduction of the initial admission mechanism) make it necessary 45 The first two phases of the reform were scheduled for 2015 and 2016, with the appointment of 19 judges (12 + 7). However, some appointments have been delayed. At the beginning of 2019, the General Court had 45 members, while the number should be 47. 46 See n 20 above. 47 The number of cases filed in 2011–18: 722, 617, 790, 912, 831, 974, 917 and 834. 48 The number of cases closed in 2011–18: 714, 688, 702, 814, 987, 755, 895 and 1009.

The Future of the General Court Within the Court of Justice of the European Union  125 for the General Court to transform its internal functioning to meet the expectations and ­challenges ahead. The General Court, like any collegiate court, has some measures at its disposal to modify its internal organisation. These include, in particular, the number and size of chambers, the degree of internal specialisation and the organisation of legal assistance for judges. Regarding chambers, a distinction must be made between the composition of the court and the chamber in the administrative sense. The CJUE Statute determines the formations of judgment. They are the Grand Chamber (15 members), the chamber of five judges, the chamber of three judges and the single judge. According to Article 14(1) of the Rules of Procedure of the General Court, the basic formation is a chamber sitting with five or three judges. A case may be referred to the Grand Chamber only in the most important or difficult cases (Articles 14(2) and 28 of the Rules of Procedure of the General Court). The ­Judge-Rapporteur may rule as a single judge under certain material and procedural conditions (Article 29 of the Rules of Procedure of the General Court). It is for the General Court to decide on its organisation within the framework of these provisions. For several years now, it has operated mainly in three-judge panels. The choice not to define five-judge panels as the standard formation was justified on grounds of ­efficiency and productivity.49 The arrival of additional judges will give more opportunities to hear cases in a panel of five judges, or even before the Grand Chamber.50 This is a major consequence of the reform. Larger formations are useful for maintaining the consistency of the case law. It is first and foremost for the General Court to ensure the consistency of its own case law. Furthermore, the question arises as to whether a panel of five judges should become the standard formation, for example with regard to certain subject matters. Finally, a larger formation is always a signal to the parties, the appellate court (in this case the Court of Justice) and other interested parties, about the importance given to the judgment. The choice of the size of the formation is a complex and subtle exercise. From now on, the General Court has more ­flexibility to use the various options at its disposal. Although the new Rules of Procedure of the General Court of 2015 have extended the scope of application of the single judge formation (in particular to trade mark cases), this arrangement still remains a rare occurrence.51 This is partly due to the fact that this procedure does not bring many advantages, especially if there is no hearing. In addition, the Rules of Procedure of the General Court provide that devolution to the single judge requires that the parties be heard first. Finally, the simplest cases can be closed by an order, following a simplified procedure. The formations of a court called upon to decide a case do not necessarily coincide with the court’s chambers as organisational entities. A chamber may be composed of more members than those who make up the formation. Since 2016, the General Court has been composed of nine chambers with five judges. A chamber has two sub-formations, which are always chaired by the President of the Chamber. In its full formation, namely of five judges, the chamber constitutes the formation to which a case coming from a ­formation



49 In

the years 2010 to 2015, 98 per cent of cases were heard by a three-judge panel. number of cases in chambers of five was 12 in 2016, 18 in 2017 and 87 in 2018. 51 In 2018, five cases. 50 The

126  Heikki Kanninen of three judges may be referred. This referral is possible by a decision of the plenum of the General Court. The decision on the size of the chambers and their functioning is important for the productivity of the General Court and for maintaining the consistency of its case law. The constitution of chambers is closely linked to the issue of judicial specialisation. This is a much-debated topic. The extreme form of specialisation is the specialised court, of which the Civil Service Tribunal has shown the benefits. The General Court is a court of general jurisdiction as its name suggests. Since the ­creation of specialised courts does not seem to be a feasible option, a less extreme form of specialisation may need to be considered, namely specialisation within the General Court. The transfer of civil service cases to the General Court in 2016, after the end of the Civil Service Tribunal, had raised questions about the impact this would have on the way in which they would be processed. At the Civil Service Tribunal, the cases had been tried by specialists applying a procedure with specific features (especially the rules on a­ micable settlement). When transferring civil service cases to the General Court, the question therefore arose as to whether they should be dealt with by all the judges of the General Court or by specialised panels. Article 25(1) of the Rules of Procedure provides that the ‘General Court may make one or more Chambers responsible for hearing and determining cases in specific matters.’ Yet in recent years, there have been no specialised chambers at the General Court.52 The ­principle is that all chambers and judges work on all types of cases.53 The chambers and judges are therefore generalists. Cases are assigned to judge-rapporteurs according to an objective system that ensures that they hear a diverse array of cases. However, there is some degree of de facto specialisation. Indeed, after having been assigned a case as judge-rapporteur, judges are also assigned related cases (for example, cases concerning the same contested decision). But, with minor and limited exceptions, this has has not led to specialisation by subject. Specialisation may take several forms: specialisation of chambers, judge-rapporteurs or legal secretaries. It will be for the General Court, within the framework of its internal organisation, to assess the need to instill a modicum of specialisation.54 This question is particularly relevant from the point of view of the quality and consistency of case law, in a court with a large number of judges. The fact that the judges of the General Court come from different countries, represent different legal cultures and stay in office for a relatively short period of time must be taken into account when comparing the specialisation of the General Court with that of national courts. There are several organisational arrangements in national and international jurisdictions for the provision of legal assistance to judges in their judicial functions. The functioning of EU courts has always relied on the contribution of a body of highly qualified lawyers which are called legal secretaries. Each judge has his or her own legal secretaries whom he

52 In this respect, however, it is worth mentioning the Appeal Chamber, composed of the President of the General Court and the Presidents of the Chambers, which examined the appeals lodged against the decisions of the Civil Service Tribunal. 53 The extent to which legal secretaries specialise in the cases depends on the judge for whom they work. 54 During the discussions on the increase in the number of judges of the General Court and on the new Rules of Procedure of the General Court in 2015, the Member States, the Commission and the Court of Justice had shown particular interest in the subject of the General Court’s specialisation.

The Future of the General Court Within the Court of Justice of the European Union  127 or she chooses. These legal secretaries work for the judge who recruited them and in his or her name. This system has remained unchanged even though there have been some other provisional experiences such as two groups of legal secretaries working solely on trade mark and competition law cases and, in the years 2014–16, legal secretaries assigned to a chamber rather than to a particular judge. These experiences show that the current structure is not the only one possible. This reflection may arise if there are not enough legal secretaries to ensure each judge can recruit an equal number of legal secretaries. Finally, it may be recalled that the CJUE Statute and the Rules of Procedure of the General Court provide that a judge may be appointed to exercise the functions of advocate general in a particular case if ‘the legal difficulty or the factual complexity of the case so requires’.55 This possibility has not been used since 1992, essentially because of the workload faced by the General Court.56 The increase in the General Court’s resources may create new opportunities. However, this raises in turn a question of principle, since the same person would be at the same time, albeit in different cases, a judge and an advocate general.

VI.  Concluding Observations The reform of the General Court, as it eventually occurred, was not the one initially proposed. The General Court advocated the creation of a new specialised court, while the Court of Justice wanted to increase the number of judges by nine or 12; the abolition of the Civil Service Tribunal was not part of the reform but came about as a collateral consequence. While one could not be blamed for thinking that this context would not bode well for the success of the reform, the result can actually be seen as a chance for the General Court and the Union’s judicial system, and as an opportunity to progress. Indeed, the doubling of the number of judges over three years, in a period of budgetary constraints, gives the General Court unprecedented resources. It is now up to the General Court to take internal measures to make intelligent use of its new resources. Ambition can and must be raised to build a court that delivers swift, legitimate and high-quality justice. This new General Court provides opportunities for further reforms of the EU judicial system. The General Court will be ready to deal with new types of cases and procedures. The extension of the initial admission mechanism could also be considered in the future. These subsequent reform proposals will help to adjust the balance between the two courts, ­allowing the Court of Justice to focus even more on cases of a constitutional nature. Finally, the enlargement of the General Court, with respect to its size and jurisdiction, will undoubtedly also lead to a reflection on the administrative modernisation of an institution composed of two independent courts.



55 Art

56 The

49 of the CJEU Statute and Art 30 of the Rules of Procedure of the General Court. last case with an advocate general was Case T-24/90 Automec Srl v Commission EU:T:1992:39.

128

9 Judicial Dialogue between National Supreme Administrative Courts and the Court of Justice of the European Union NIILO JÄÄSKINEN Admittedly, the very establishment and existence of administrative courts can be hailed as one of the most conspicuous achievements of a State based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle.1

I. Introduction Judge Allan Rosas has had a long and outstanding career as a judge of the Court of Justice of the European Union (CJEU; Court of Justice). Moreover, he is a leading academic commentator on issues relating to EU constitutional and institutional law.2 Before entering the service of the European Commission in 1995, and later the EU bench in 2002, Allan Rosas was professor of public law at the Swedish-speaking university of Turku, the Åbo Akademi. He was among the most prominent Finnish scholars of public law and international law. In this capacity he published some seminal studies on administrative law concerning, for example, administrative complaints procedure and so-called indirect public administration, ie administrative functions delegated by the State to external public or private organisations.3 To pay homage to these premiers amours of Judge Rosas, I have decided to dedicate my contribution to his Festschrift to an administrative law topic. This chapter examines the relation of Member State supreme administrative courts and the Court of Justice in preliminary ruling procedures. I shall start by recalling the origins of the CJEU in the European

1 Kress v France, App no 39594/98, ECHR 2001-VI, 7 June 2001, § 69. This chapter is an expanded version of my speech at the centennial seminar of the Supreme Administrative Court of Finland held on 30 August 2018 at Finlandia Hall in Helsinki. I should like to thank Pekka Aalto and Timothy Binham for their invaluable comments. The usual disclaimer applies. 2 See, for example, A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018). 3 A Rosas, Förvaltningsklagan (Turku, Åbo akademi, 1980), H Kulla and A Rosas, Medelbar offentlig förvaltning: begreppsutredning och problemområden (Meddelanden från Ekonomisk-statsvetenskapliga fakulteten vid Åbo Akademi) (Turku, Åbo akademi, 1981, 2nd edn 1985).

130  Niilo Jääskinen tradition of administrative jurisdiction and then examine the origins and current functions of supreme level administrative jurisdiction in the Members States. Next, the interaction of national supreme administrative courts and the Court of Justice is analysed from three angles: first, by focussing in terms of quantitative analysis to references for a preliminary ruling from national supreme administrative courts, second, by assessing some key references from the Supreme Administrative Court of Finland as examples of the judicial dialogue, and thirdly, by presenting three examples from other national supreme administrative courts to illustrate the nature of the judicial dialogue between this category of national courts and the Court of Justice.

II.  The Common Roots of Member State Supreme Administrative Courts and the Court of Justice The Court of Justice and the supreme administrative courts of the Member States each have a unique role and history. Intellectually they, nevertheless, belong to the same family, namely that stemming from the French Conseil d’État and the nineteenth-century evolution of administrative law as a special branch of law within the emerging ideal of a State based on the rule of law. This evolution led in many countries to an organisational separation between the state functions of administration and administrative jurisdiction,4 and, as a consequence, to the establishment of special judicial procedures applicable in bodies other than the ordinary courts with jurisdiction over civil and criminal cases. The genetic, intellectual and cultural link between the Court of Justice and the Conseil d’État is easily established. The blueprint of the Court of the European Coal and Steel Community was drawn up by French lawyers, in particular by Maurice Lagrange, a longstanding member of the Conseil d’État and the first Advocate General of the new court. The rules of procedure of the Community Court reflected, as those of the Court of Justice still reflect, the traditions of French administrative court procedure. This becomes evident when one looks at such concepts as recours en annulation, pourvoi, ­ intérêt d’agir, or détournement de pouvoir, transplanted into European Union procedural law. A ­striking example is, of course, the Advocate General, who is the (former) Commissaire du gouvernement (since 2009, Rapporteur public) of the Conseil d’État renamed. Culturally, it is sufficient to eavesdrop on the langue de travail spoken in the Salle des pas perdus after an audience solennelle to acknowledge that the CJEU is and remains a European institution where French roots prevail. The establishment of the Court of First Instance of the European Communities, today known as the General Court, has further aligned the position of the Court of Justice with that of national supreme administrative courts, insofar as judicial review of the legality of decision-making by EU institutions and bodies is concerned.

4 In the following, ‘administrative jurisdiction’ is used to refer to the continental law notions of contentieux administratif or Verwaltungsgerichtsbarkeit.

Judicial Dialogue between National Supreme Administrative Courts  131

III.  Highest Administrative Jurisdiction in the Court Systems of the European Union Member States Within the evolution leading to the establishment of administrative court systems, three different patterns can be distinguished. The first of them is the Council of State model. In nineteenth-century France, the Conseil d’État developed particular procedures that enabled the individual to challenge administrative action by authorities with regard to their objective legality. These procedures created case law and doctrine that defined administrative law as an intellectual body in which the competences, rights and obligations of the public authorities – and as a consequence, those of the individuals and companies – were spelled out with precision and in detail. Much later, in the 1950s, first-level administrative tribunals were established, and in 1987 a new tier was added by the creation of administrative courts of appeal. The Conseil d’État at the top of the system retained its dual character as the supreme administrative jurisdiction and as a consultative body in legislative and regulatory proceedings.5 As to the supreme administrative courts in Member States, the link to the French institution is obvious for some of them, such as the Dutch Raad van State and the Italian Consiglio dello Stato. They share the same name, the dual nature of being similarly a judicial body and an advisory body in the legislative and regulatory processes, and indeed, the fact of not formally being a court but a constitutional institution sui generis. For the others, national developments led to the establishment of supreme administrative courts either by creating completely new, purely judicial institutions, as in Germany, or by divesting the highest executive organs of their judicial functions and vesting them in an independent court. Before the unification of Germany in 1870, there were long doctrinal debates in the German states on whether the review of administrative decision-making should be vested in ordinary courts or whether it would be better to establish a separate line of administrative jurisdiction.6 This debate led to the establishment of independent administrative courts in the state of Baden in 1863 and of the Royal Administrative Court of Prussia (Königlich Preußische Oberverwaltungsgericht) in 1875. In 1952, the latter institution was succeeded by the Federal Supreme Administrative Court (Bundesverwaltungsgericht). Unlike in France, the focus of the control exercised by German administrative courts was not aimed at ensuring the objective legality of administrative decisions but at protecting the subjective public law rights of individuals (Individualrechtsschutz), in other words, in determining how such rights limit the discretion of administrative authorities. This difference is reflected, as President of the CJEU Koen Lenaerts has observed, in the fact that the two approaches are based on very different rules regarding admissibility (locus standi) and the scope of judicial review.7 5 The historical evolution of French administrative jurisdiction during the 19th century is described in H Kulla, Hallinto ja lainkäyttö [‘Administration and administrative jurisdiction’] (Helsinki, Suomalainen ­Lakimiesyhdistys, 1980) 51–84. 6 On the evolution of administrative jurisdiction in 19th-century Germany, see Kulla (n 5), 84–147. 7 Koen Lenaerts. Speech at the centennial seminar of the Supreme Administrative Court of Finland, see n 1. The text of the speech is available at www.kho.fi/material/attachments/kho/aineistoa/yT7hrHrAn/Finland_Supreme_ Administrative_Court.pdf.

132  Niilo Jääskinen A third path leading to the establishment of supreme administrative courts and other administrative courts has been the differentiation of judicial appeals procedures from administrative petitions or complaints procedures, with the result that the first task has been entrusted to independent administrative courts. This evolution was not guided by any definite view of the theoretical objective of judicial control of administrative decision-making. These systems have therefore accommodated two parallel approaches: one based on the objective review of legality and the other on the protection of subjective rights. For example, in Sweden – and thus in Finland, which was a part of the Kingdom of Sweden until 1809 – the right to submit any administrative decision for examination by a higher authority, in the last instance the monarch, was based on medieval customary law. However, during the seventeenth century administrative or public law actions against decisions of administrative authorities were excluded from the competences of ordinary courts, and this principle was enshrined in the judicial code of 1734. Thus, these decisions were dealt with by superior administrative bodies, which in some cases had particular collegial compositions for this purpose. However, the procedures for examining these cases were based on similar judicial principles as court procedures. This situation persisted until a separate independent supreme administrative court was established, in Sweden in 1909 and in Finland in 1918.8 Despite the differences described above, in all of these countries the need for a special judicial body for administrative review, and the judicial framework that body adopted, was influenced by nineteenth-century French administrative law doctrine. At present, the judicial systems of the EU represent a great variety structurally.9 Administrative jurisdiction as a special branch of the judiciary exists in most European Union Member States.10 In some cases, such as Estonia and Spain, separate administrative courts exist at the lower level of the judicial system whereas at the top there is a single supreme court with a separate chamber for administrative law affairs. A variation of this structure can be found in the United Kingdom and Ireland, where the ordinary court system includes or is supplemented by specialised tribunals for certain categories of public law cases like immigration and asylum or tax matters. In contrast, the judicial system in the Netherlands is unified, with the exception of two specialised courts for social and economic matters, but at the top there are two supreme courts, namely the Hoge Raad for civil, criminal and tax cases, and the Raad van State for administrative law cases.

8 In the case of Finland, in 1918 the old imperial Senate of the Grand-Duchy of Finland was, after the country had become an independent republic in 1917, split into the political government called the State Council, the Supreme Court with jurisdiction over civil and criminal matters and the Supreme Administrative Court. Lower level independent administrative courts were separated from regional and central administrative bodies much later. 9 At the one extreme we have the example of Denmark with a completely unified court system, and at the other extreme Germany with special lines of jurisdiction for civil and criminal cases, administrative law cases, fiscal cases, labour law cases and social law cases and, moreover, a system of federal and state level constitutional courts. For a general presentation of Member States’ court system, see ‘Les Juridictions des États membres de l’Union européenne’ (Luxembourg, Office des publications officielles des Communautés européennes, 2008), available at curia.europa.eu/jcms/jcms/Jo2_7231/fr/. 10 For the organisation of administrative jurisdiction in the Member States of the European Union see www.aca-europe.eu/index.php/en/tour-d-europe-en.

Judicial Dialogue between National Supreme Administrative Courts  133 A number of Member States have a dual court system, usually with one or two tiers of lower ordinary courts for civil and criminal matters and administrative courts for public law cases, and two supreme courts, and eventually a separate constitutional court and other specialised courts. A complete dual court structure exists, for example, in Bulgaria, Germany, France, Italy, Greece, Lithuania, Luxembourg, Austria, Poland, Portugal, Finland and Sweden. The competence of a national supreme administrative court usually includes examination of appeals against decisions of lower level administrative courts and tribunals, and in some cases also directly deciding on administrative law actions concerning decisions of higher governmental or administrative bodies. Materially, their jurisdiction covers general administrative law, and in most cases, such sectors of public law as local government, tax law, public procurement, immigration and asylum, and planning, building and environmental protection. This said, the material competences of the national supreme administrative courts vary between the Member States. I have already mentioned that in the Netherlands, tax law falls in the remit of ordinary courts. In Sweden the Supreme Administrative Court is not competent in environmental law matters, which belong to the ordinary courts, but it has jurisdiction over social insurance matters. Regarding the Finnish Supreme Administrative Court, the situation is opposite. Some areas of public law may also be excluded from the jurisdiction of the national supreme administrative court and be vested in the specialised courts. On the other hand, in some Member States the national supreme administrative court is competent also concerning actions for damages against public authorities. This is the case, for example, in France and Portugal. In other Member States such as Austria or Finland, such damages are considered to be of a civil law nature and belong to the ordinary courts.

IV.  Europeanisation of National Public Law In spite of the differences described above, it can be observed that it is the administrative courts in general and the national supreme administrative courts in particular that were first faced with the new supranational legal system established by the European Communities. European Community law, being directly applicable and having primacy, and also, in many cases, direct effect, imposed new obligations on national administrations and created new needs and opportunities for individuals to challenge their decisions before national administrative courts. This was unsurprising in that the main bulk of Community law during the first decades of European integration was related to the establishment of the Common Market by harmonising national economic law and to such common policies as the Common Agricultural Policy and the Common Commercial Policy forming part of the customs union between the Member States. Over 60 year later, the material scope of European Union law has widened greatly, and it covers in practice all branches of law. In particular, the Single Market and the establishment of the Area of Freedom, Security and Justice have broadened the scope of EU law to a plethora of commercial, civil and criminal law issues, which in many Member States belong to the jurisdiction of ordinary courts. Yet we may safely assume that in particular

134  Niilo Jääskinen in those Member States where the administrative courts are competent also in tax, customs and asylum matters, the centre of gravity in the national application of EU law remains in the administrative courts, at the superior level at the national supreme administrative court. The fact of the Europeanisation of national public law was acknowledged early on by the national supreme administrative courts. As early as in December 1964, a bilateral meeting was organised between the councils of states of Belgium and Italy, and a colloquium between the supreme administrative courts of the original six Member States was organised in Rome in March 1968. Thereafter, such colloquia have been organised biannually, and in 1998, it was decided to create the Association of the Councils of State and the Supreme Administrative Jurisdictions of the Member States of the European Union (ACA). The statutes of the association were adopted in 2000.11 By way of comparison, the similar cooperation between the presidents of the judicial supreme courts of the EU was formalised in 2004. The ACA includes, not only national supreme administrative courts in sensu stricto, but also the CJEU, supreme courts of Member States without a separate supreme administrative court, and certain third country courts as observers. The ACA has become a network of intensive cooperation, sharing of experiences and information on national case law relating to EU law. It is a vivid example of the importance of EU law for the application of national public law.

V.  Evolution and Scope of Preliminary References by the Member State Supreme Administrative Courts Even if the effect of Community law was felt first by the administrative courts of the Member States, the national supreme administrative courts of the original six Member States were not very enthusiastic about their new obligation to refer to the Court of Justice questions on the interpretation and validity of Community law. In fact, with the notable exception of Belgium, in other original Member States it was the lower administrative courts, ordinary courts, and indeed the judicial supreme courts, that made references well before the national supreme administrative court made its first reference. For the original six Member States, the interval between the first reference from a national supreme administrative court and the preliminary ruling procedure becoming applicable was shortest in the case of Belgium, namely nine years from the entry into force of the Rome Treaties, and longest in the case of Italy, namely 33 years. Regarding those Member States that have acceded to the Communities or the EU later, their national supreme administrative courts have made their references usually between the second and the fifth year of EU law having become applicable. This reflects the usual time span for a case to reach the highest tier of the court system.



11 See

www.aca-europe.eu/index.php/en/historique-en.

Judicial Dialogue between National Supreme Administrative Courts  135 Table 9.1  References for a Preliminary Ruling by National Supreme Administrative Courts (NSAC)12 References by NSAC/judicial supreme court

First Reference by the NSAC13

Total number of References by the NSAC

All references

Belgium

1967*

82

841

82/94

Bulgaria

2009

19

117

19/5

Czech Republic

2008

Member State

Germany14

1970 (BVerwG) 1967 (BFH)

28 450 (BVerwG+BFH)

57 2449

28/9 450/343 (BGH+BAG+BSG)

182

59/12

125

979

125/127

151

1445

151/150

21

55

Greece

1986

59

France

1970

Italy

1991

Lithuania

2006*

Luxembourg

1981

28

92

Netherlands

1973

122

1013

122/285

Austria

1996

107

521

107/124

Poland

2007

44

127

44/18

Portugal

1991

63

174

63/15

Finland

1996

56

115

56/23

Sweden

1997

12

134

12/22

21/18 28/28

In many cases the number of references for a preliminary ruling originating in supreme administrative courts is much higher than for those originating in the judicial supreme courts. This applies, among others, to Bulgaria, the Czech Republic, Germany, Greece, Poland, Portugal and Finland. The number is grosso modo equal in Belgium, France, Italy, Lithuania, Luxembourg and Austria. The number of references from the judicial supreme court outweighs the number of those from the supreme administrative court in the cases of the Netherlands and Sweden. As to the Netherlands, this finding is surely explained by the fact that fiscal law falls within the jurisdiction of the Hoge Raad and not of the Raad van State. In their seminal study Preliminary References to the European Court of Justice, Morten Broberg and Niels Fenger carried out a statistical and theoretical analysis of national courts’ abilities and willingness to refer cases for a preliminary ruling. They developed sophisticated

12 The basic figures are from the yearly statistics of the Court of Justice in its annual report for 2017, whereas the figures in italics are my own. 13 An asterisk (*) indicates that it was the first reference for a preliminary ruling from the Member State in question. 14 BVerwG refers to the Bundesverwaltungsgericht, BFH to the Bundesfinanzhof, BGH to the Bundesgerichtshof, BAG to the Bundesarbeitsgericht and BSG to the Bundessozialgericht, ie the federal administrative, fiscal, judicial, labour and social supreme courts.

136  Niilo Jääskinen quantitative tools to estimate a predicted number of references by a Member State considering its size, the number of judges and courts, the proneness to litigation in the Member State and other relevant legal-sociological factors. However, after a long discussion, they concluded that there is no simple explanation to the variance found in this respect between the courts of different Member States. Especially attempts to explain these differences with regard to attitudes towards European integration or political and constitutional traditions seemed to be unfounded.15 In the following, I have taken their figures as a heuristic device for studying whether certain national supreme administrative courts refer cases more or less often than could be expected for the Member State in question. In Table 9.2 I have multiplied the predicted number of annual preliminary references per Member State according to Broberg and Fenger (‘BF Predicted references’) with the ratio of the references by the national supreme administrative court to all references from that Member State. This predicted number of references by the national supreme administrative court is then compared with the actual yearly average number of references from the national supreme administrative court. The following statistics do not pretend to any scientific accuracy, in particular as the figures Broberg and Fenger use for estimating the predicted number of references cover a different time frame than those I have used, but they may reveal some interesting findings. Table 9.2  References for a Preliminary Ruling by National Supreme Administrative Courts16 Total number of Member State Membership references (membership years by the by all in EEC/EU) end of 2017 courts

Total number of References by the NSAC

Ratio NSAC/ all courts

BF NSAC NSAC predicted predicted actual references references17 references18

Belgium 1958

60

841

82

0.097

5.86

0.568

1.367

Bulgaria 2007

11

117

19

0.162

7.162

1.160

1.727

Czech Republic 2004

14

57

28

0.491

6.112

3.001

2.000

Germany 1958

60

2449

450 *BVwG+BFGH

0.183

36.842

6.742

7.500

Greece 1981

37

182

59

0.324

6.377

2.067

1.595

France 1958

60

979

125

0.127

29.271

3.717

2.083

Italy 1958

60

1445

151

0.104

26.279

2.733

2.517

Lithuania 2004

14

55

21

0.381

2.212

0.842

1.500

Luxembourg 1958

60

92

28

0.304

0.694

0.211

0.467 (continued)

15 M Broberg and N Fenger Preliminary References to the European Court of Justice (Oxford, Oxford University Press, 2014) 48, 49–59. 16 The basic figures are from the yearly statistics of the Court of Justice in its annual report for 2017, the figures in the column ‘BF predicted’ are from M Broberg and N Fenger Preliminary References to the European Court of Justice (n 15 above), 48, whereas the figures in italics are my own. 17 Rounded to the third decimal. 18 Rounded to the third decimal.

Judicial Dialogue between National Supreme Administrative Courts  137 Table 9.2  (Continued) Total number of Member State Membership references (membership years by the by all in EEC/EU) end of 2017 courts

Total number of References by the NSAC

Ratio NSAC/ all courts

BF predicted references

NSAC predicted references

NSAC actual references

Netherlands 1958

60

1013

122

0.120

8.379

1.005

2.033

Austria 1995

23

521

107

0.205

6.191

1.269

4.652

Poland 2004

14

127

44

0.346

20.117

6.960

3.143

Portugal 1986

32

174

63

0.362

6.626

2.399

1.969

Finland 1995

23

115

56

0.486

4.674

2.272

2.435

Sweden 1995

23

134

12

0.089

6.386

0.568

0.522

With regard to the importance of the national supreme administrative court within its own Member State as a source of preliminary references, the Czech and the Finnish supreme administrative courts have both presented almost half of the references, the Greek, ­Lithuanian, Luxembourg, Polish and Portuguese about one third, the Bulgarian, German and Austrian courts about one fifth and the Belgian, French, Italian, Netherlands and Swedish courts about one tenth. When adjusted to the predicted number of references, ie what could be expected from the supreme administrative court of that particular Member State, we get different figures. In the cases of Belgium, Bulgaria, Germany, Lithuania, Luxembourg, the Netherlands, Austria and Finland, the number of actual preliminary references per annum is higher than what the factors predicting the number of references and the role of the national supreme administrative court as a source of references would entail. In contrast, this figure is lower in the cases of the Czech Republic, Greece, France, Italy, Poland, and Sweden. Except for Austria and Poland, these differences are insignificant; Austria’s Verwaltungsgericht makes yearly four more references than might be expected from a Member State of that size and that kind of judicial culture, whereas the Polish Supreme Administrative Court makes about three references less than might be expected. It should be remembered that when the actual number is higher or smaller than the expected one, this tends to reflect the similar deviation for all courts of that Member State, and only to a lesser degree the activity of the national supreme administrative court in question.

VI.  The Example of the Finnish Supreme Administrative Court – An Active National Partner in the Judicial Dialogue with the CJEU The Supreme Administrative Court made its first reference for a preliminary ruling in 1996 in Case C-412/96 Kainuun Liikenne and Pohjolan Liikenne.19 The case concerned the

19 See

Case C-412/96 Kainuun Liikenne Oy and Oy Pohjolan Liikenne AB EU:C:1998:415.

138  Niilo Jääskinen question of whether a Member State is obliged to grant a partial termination of a public service obligation to a bus company when the obligation entails economic disadvantage to the company. This was the second preliminary reference made by a Finnish court or tribunal, the first one having been made by the then county administrative court of Uusimaa. By the end of 2017, the Finnish Supreme Administrative Court had made 56 references for a preliminary ruling, or around 2.4 references per year of EU membership. This figure represents approximately 49 per cent of the Finnish references. During the same period, the Finnish Supreme Court made 23 references, which illustrates that the centre of gravity of the national application of EU law in Finland remains in the administrative courts. It can be debated whether the Supreme Administrative Court has made too few, too many or enough references. When compared to the number of cases where EU law is relevant, this number is surely quite small. Twenty years ago, it was estimated that EU law was directly or indirectly relevant to about one third of the cases dealt with by the Supreme Administrative Court. After 2015, when the asylum crisis has almost doubled the case load of the Supreme Administrative Court, this portion became much higher. On the other hand, in practice, EU law questions to which the answer cannot be deduced from the wording of the relevant EU provision and/or the case law of the Court of Justice, are rare. For the parties, a reference entails a prolongation of the procedure by about two years, and additional costs. I have encountered cases where a party has withdrawn its appeal after it was consulted about the need to make a reference. On the other hand, it is not uncommon for the Supreme Administrative Court to reject the request by a party to refer the case because the conditions for making a reference pursuant to Article 267 TFEU are not met. The Supreme Administrative Court has not made any references that led to a judgment of great constitutional or institutional importance. Of the 56 references answered by the Court of Justice by the end of 2017, only five were dealt with by the Grand Chamber of the Court.20 In reality, the references by the Supreme Administrative Court typically concern somewhat boring legal issues of interpretation of individual EU legal acts. Nevertheless, such questions may be highly pertinent for the application of EU law in the sector at hand, such as VAT, public procurement or waste legislation, and are therefore often cited in the case law of the Court of Justice. To give examples of references by the Supreme Administrative Court of Finland leading to judgments by the Grand Chamber of the Court of Justice or the full Court that have been influential in the development of EU law, I should like to cite the following cases. In Case C-513/99 Concordia Bus Finland21 the Court of Justice declared that in public procurement concerning local bus traffic, the contracting authority was allowed to take into consideration ecological criteria such as the level of nitrogen oxide emissions or the noise level of the buses, provided that they were linked to the subject-matter of the contract, did not confer an unrestricted freedom of choice on the authority, were expressly mentioned in the contract documents or the tender notice, and complied with all the fundamental principles of Community law, in particular the principle of non-discrimination. This judgment provided an opening for taking ecological values into consideration in EU public ­procurement law. 20 Moreover, the Grand Chamber delivered its judgment in Case C-25/17 Jehovan todistajat EU:C:2018:551, on 10 July 2018. 21 Case C-513/99 Concordia Bus Finland Oy Ab EU:C:2002:495.

Judicial Dialogue between National Supreme Administrative Courts  139 In Case C-319/02 Manninen22 the Court of Justice declared the so-called avoir fiscal system in the form it was applied in Finland to be incompatible with the Treaty provisions on free movement of capital. In an avoir fiscal system, a taxable person subject to dividends tax is entitled to a tax credit based on the corresponding corporate tax payable by the distributing company. In Finland the credit existed in relation to dividends paid by national companies, but it was excluded regarding foreign sourced dividends. According to the Court of Justice, this was an unjustified restriction of the free movement of capital. Nationally, the Manninen judgment dealt a deadly blow to the avoir fiscal system. At the EU level, it clarified that national tax policy objectives, such as fiscal neutrality, do not justify discrimination of income sourced in other Member States. Discrimination in direct taxation was also present in Case C-231/05 AA Oy.23 The Grand Chamber of the Court of Justice found that the freedom of establishment set out in Article 43 EC did not preclude a system instituted by legislation of a Member State, whereby a subsidiary resident in that Member State could not deduct an intra-group financial transfer which it made in favour of its parent company from its taxable income unless that parent company was established in that same Member State. Indeed, the Court of Justice found that the difference in treatment to which resident subsidiaries were subjected by reason of the location of the corporate seat of their parent company constituted a restriction on the freedom of establishment. However, this difference in treatment was justified by a combination of two factors, the need to safeguard the balanced allocation of the power to tax between the Member States and the need to prevent tax avoidance. The ‘Jack-in-the-box’ theory of EU law has been presented in Finnish doctrine to describe situations where EU law unexpectedly pops up in a national legal situation and changes the parameters of the established national legal system.24 This phenomenon occurred in Case C-435/06 C,25 which concerned the applicability of Council Regulation No 2001/2003, the so-called Brussels IIA regulation,26 to a decision concerning the taking into care and placement of children outside the family home within the context of public law protection of child measures. In 2005 two children resident in Sweden were taken into care by the Swedish social authorities, and the decision was confirmed by the competent county administrative court in Sweden. Meanwhile, the children, together with their mother, moved their residence to Finland. The Finnish police decided to implement the Swedish judgment in accordance with the national legislation concerning the execution of decisions on social care made by the authorities in other Nordic countries. The case came to the Supreme Administrative Court, which referred it to the Court of Justice. The Grand Chamber ruled that article 1(1) of Regulation No 2201/2003 was to be interpreted to the effect that a single decision ordering a child to be taken into care and placed 22 Case C-319/02 Petri Manninen EU:C:2004:484. 23 Case C-231/05 Oy AA EU:C:2007:439. 24 See Thomas Wilhelmsson, ‘Jack-in-the box Theory of European Community Law’, in Law and diffuse interests in the European legal order. Liber amicorum Norbert Reich (Baden-Baden, Nomos 1997). 25 Judgment of 27 November 2007, EU:C:2007:714. 26 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2000] OJ L338/1, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, [2004] OJ L367/1 (‘Regulation No 2201/2003’).

140  Niilo Jääskinen outside his original home in a foster family is covered by the term ‘civil matters’ for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection. Moreover, the Regulation was to be interpreted as meaning that harmonised national legislation on the recognition and enforcement of administrative decisions on the taking into care and placement of persons, adopted in the context of Nordic Cooperation, may not be applied to a decision to take a child into care that falls within the scope of that Regulation. For the Supreme Administrative Court, the preliminary ruling meant that it was not competent in the matter relating to the execution of the Swedish judgment. Moreover, ­Finnish child protection legislation was to be considered as civil law in terms of EU law, even if it remained public law nationally. The Grand Chamber of the Court of Justice had an opportunity to examine the demarcation lines between data protection and freedom of information in Case C-73/07 Satakunnan markkinapörssi and Satamedia.27 The Court of Justice found that the traditional Finnish practice of publishing income taxation information of individuals, the so-called ‘Tax Calendars’, by means of new technologies, was to be considered as processing of personal data in the sense of EU data protection provisions. However, collecting such data from public sources and publishing it in printed form were covered by the so-called journalism exception set out in Article 9 of Directive 95/46 on processing of personal data28 when it relates to data from documents which are in the public domain under national legislation, if the sole object of those activities is the disclosure to the public of information, opinions or ideas. On the other hand, distribution of the data in unaltered forms for commercial purposes in the form of CD-Rom discs and text message services fell under the directive even if the data had already been published.

VII.  Challenges and Loyalty – Cohn-Bendit v Landtová The dialogue between the Court of Justice and the national supreme administrative courts has had its frictions. Unlike the constitutional courts, which have started to refer cases for a preliminary ruling only during the last 10 to 15 years,29 national supreme administrative courts have used the preliminary reference procedure quite actively, even if the start was slow for most of those from the six original Member States. In contrast, at the outset some national supreme administrative courts had great difficulties in accepting certain legal principles developed by the Court of Justice in its case law. The most striking example of this was the reluctance of the French Conseil d’État to accept the direct effect of non-implemented directives, a legal principle the Court of Justice

27 Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy EU:C:2008:727. 28 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ([1995] OJ L281/31). 29 See, for example, M Claes, ‘Luxembourg, Here We Come? Constitutional Courts and the Preliminary R ­ eference Procedure’ (2015) 16 German Law Journal (Special Issue – The Preliminary Reference to the Court of Justice of the European Union by Constitutional Courts) 1331–42.

Judicial Dialogue between National Supreme Administrative Courts  141 had developed in the 1970s. The Conseil d’État rejected this principle in its Cohn-Bendit case law of 1978,30 and only changed its approach in October 2009.31 Similar opposition to follow this doctrine, or even to refer cases where this principle could be applied, could also be seen in the case law of the Bundesfinanzhof and Bundesverwaltungsgericht during the 1970s.32 For a member of a national supreme administrative court, it is not difficult to understand why the dynamic style of interpretation adopted by the Court of Justice has caused problems to some national courts. The newly created Court of Justice was bound to construct a completely new supranational legal system using multilingual legal sources that were in many senses quite incomplete. Therefore, it could not adopt a black letter approach in the interpretation of Community law but a teleological and dynamic one. In contrast, for national administrative law courts the application of law takes place in a context where decision-making by administrative authorities must be examined and evaluated by applying legislative and regulatory texts which these authorities themselves are expected to apply at the first instance. An overly liberal approach towards legal materials would render the principle of law-based administration purposeless, since the very point of administrative court procedures is to ensure that administrative authorities observe law and do not infringe the rights of individuals based on laws and regulations. Therefore, the confrontation of national legality with that of the new European Communities was bound to create friction. However, this friction has been absorbed by the acceptance by the national supreme administrative courts of the foundational constitutional principles of EU law, namely those of primacy and direct effect of EU law, and the exclusive jurisdiction of the Court of Justice to determine the scope and legal effects of EU law. The saga of the Landtová case is illustrative in this respect.33 In that case the Supreme Administrative Court of the Czech Republic referred the relevant EU law question for a preliminary ruling and then duly applied the interpretation adopted by the Court of Justice. It was then the Czech Constitutional Court that declined to accept the outcome of the case in the context of another litigation at the national level and issued the first ever judgment of a national court which declares a judgment of the Court of Justice as ultra vires and thus unconstitutional. When one looks at various lists of landmark judgments of the CJEU, preliminary references from national supreme administrative courts are not listed. This is not surprising. For these courts EU law appears as substance, ie material law to be applied on a day-to-day basis in a Europeanised legal context. This does not mean that the preliminary references by national supreme administrative courts are legally insignificant, but rather that they do not relate to structural or constitutional points of friction. To illustrate this, I mention three Grand Chamber judgments of the Court of Justice answering preliminary questions by national supreme administrative courts and having great importance as precedents. 30 See on this eg H Rasmussen, On Law and Policy in the European Court of Justice. A Comparative Study in ­Judicial Policymaking (Dordrecht, Martinus Nijhoff Publishers, 1986) 310–15. 31 CE Ass, 30 Octobre 2009, Mme Perreux, n° 298348, www.legifrance.gouv.fr/affichJuriAdmin.do?idTexte=CET ATEXT000021219388. 32 See H Rasmussen (n 30), 319–25. 33 See Case C‑399/09 Marie Landtová v Česká správa socialního zabezpečení EU:C:2011:415. The relevant judgment of 31 January 2012 of the Czech Constitutional Court can be consulted at https://www.usoud.cz/en/ decisions/20120131-pl-us-512-slovak-pensions-1/.

142  Niilo Jääskinen In the Weser case,34 the Bundesverwaltungsgericht had asked for clarification of the legal effects of objectives included in the water management plans adopted in accordance with the Water Framework Directive.35 The Grand Chamber of the Court of Justice declared that these objectives were legally binding and not merely indicative. This ruling is of utmost importance for achieving a good ecological and chemical status of European waters, something that is primordial to the effectiveness of EU environmental law. In joined cases C-148–150/13 A, B and C36 the Court of Justice issued a preliminary ruling which clarified important questions of EU refugee law where persecution on grounds of sexual orientation is invoked as a reason for seeking international protection. In this case, the main proceedings took place at the Raad van State of the Netherlands. The Court of Justice interpreted the so-called Qualification Directive 2004/83 and the so-called Minimum Procedures Directive 2005/8537 in the light of the Charter of Fundamental Rights of the European Union in the context of applications for asylum. In the context of the assessment by the competent national authorities of such claims, the Court of Justice excluded any evidence submitted in support of an application for asylum being subject to an assessment founded on questions based only on stereotyped notions concerning homosexuals. Moreover, the competent national authorities are precluded from carrying out detailed questioning as to the sexual practices of an applicant for asylum. Equally, the applicant’s submission to ‘tests’ with a view to establishing his homosexuality is excluded as evidence. The competent national authorities may not find that the statements of asylum applicants lack credibility merely because they did not rely on their declared sexual orientation on the first occasion they were given to set out the grounds for persecution. This guidance is of great practical value for national supreme administrative courts, which have been confronted with an extremely huge number of asylum cases as of 2015. The Finnish Supreme Administrative Court has relied on this judgment on many occasions, for example in its judgment of 15 June 2018, KHO 2018:90. My third and final example comes from the Consiglio dello Stato of Italy, whose preliminary reference in C-159/11, Azienda Sanitaria Locale di Lecce and Others,38 gave the Court of Justice an opportunity to clarify the criteria by which a public entity can be considered to be acting as an economic operator, a question of great practical, legal and political importance. The national proceedings took place between the Local Health Authority of Lecce and the University of Salento, on the one hand, and the Order of Architects of the Province of Lecce and others, on the other hand. They concerned the consultancy contract concluded between the Authority and the University relating to the study and the evaluation of the

34 Case C‑461/13 Bund für Umwelt und Naturschutz Deutschland EU:C:2015:433. 35 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, [2000] OJ L327/1. 36 Joined Cases C‑148/13 to C‑150/13, A (C‑148/13), B (C‑149/13), C (C‑150/13) EU:C:2014:2406. 37 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, [2004] OJ L304/12; Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. 38 Case C‑159/11 Azienda Sanitaria Locale di Lecce, Università del Salento v Ordine degli Ingegneri della Provincia di Lecce and Others EU:C:2012:817.

Judicial Dialogue between National Supreme Administrative Courts  143 seismic vulnerability of hospital structures in the province of Lecce.39 The reference sought clarification of the so-called public entities exception which excludes cooperation between public entities for fulfilment of public tasks from the scope of EU public procurement rules. The Court found, inter alia, that the contract between the authority and the University contained a series of substantive aspects, of which a significant or even major part corresponds to activities usually carried out by engineers and architects, and which, even though they have an academic foundation, do not constitute academic research. The Court concluded that European Union public procurement law precludes national legislation which authorises the conclusion, without an invitation to tender, of a contract by which public entities establish cooperation among each other where the purpose of such a contract is not to ensure that a public task that those entities all have to perform is carried out, where that contract is not governed solely by considerations and requirements relating to the pursuit of objectives in the public interest (or where it is such as to place a private provider of services in a position of advantage vis-à-vis his competitors). The three cases described above illustrate the very low profile of much of the judicial dialogue between the Court of Justice and the national supreme administrative courts. Such cases rarely attract the attention of the EU law generalist or constitutional lawyers, let alone of the media or the general public. And yet they represent considerable human, legal, economic, and social interests, and highlight the need to ensure the protection of the fundamental rights and interests of individuals and economic operators in the application of EU law by Member States authorities. KJ Ståhlberg, who was the first president of the Supreme Administrative Court of Finland and also the first president of the Republic of Finland, used to emphasise how the Supreme Administrative Court contributes to the development of a strong rule of law based state by examining meticulously the appeals individuals have raised against decisions of administrative authorities even in lesser cases. This idea of building the rule of law brick-by-brick in the course of judicial decision-making equally applies to the judicial dialogue between the Court of Justice and the national supreme administrative courts.

39 Here, the description of the case is simplified by excluding the aspect relating to discrimination between private subcontractors.

144

10 Acts of Rebellion, or the Enemy Within? A Consideration of the Combative Ruling of the Supreme Court of Denmark and the Imperative of Genuine Judicial Dialogue LORNA ARMATI*

I. Introduction While I make no claim to master the politico-scientific aspects of what motivates judges to make use of the procedure for requesting a preliminary ruling from the ECJ, I continue to be struck by the apparent wish for open confrontation that characterises the request sent by the Supreme Court of Denmark in the Ajos case.1 The same question echoes through the various commentaries: what did they expect the answer to be? What is less clear is the extent of the opinion that the ECJ was also ‘asking for it’. I will argue that it was not.2 And in order to emphasise my point and to explore how a similar incident can best be avoided in the future – for I firmly believe that it would be folly to pursue such open conflict – I will consider and contrast a more recent example of what might happen when a constitutional court finds a ruling from the Court difficult to deal with, when viewed through its own national constitutional lens: Case C-42/17 MAS and MB (also referred to as Taricco II).3 In what may be viewed as a far more Machiavellian approach to the ‘dialogue’ that Article 267 TFEU set up, the Italian Constitutional Court prolonged an exchange that had produced what was, in essence, a damning verdict on the judicial system in Italy, by seeking clarity from the Court as to whether it had really intended to hand * Thanks go to my colleagues at the Legal Service of the Commission who kindly allowed me to use them as sounding boards while preparing this contribution. For obvious reasons, my usual first choice of Judge Rosas himself was not an option on this occasion. The views expressed in this contribution are the author’s own and do not necessarily reflect the opinion of the European Commission. 1 Case 15/2014 Dansk Industri (DI) acting for Ajos A/S v The estate left by A, available at www.supremecourt.dk/ supremecourt/nyheder/pressemeddelelser/Documents/Judgment%2015-2014.pdf (last visited on 20.12.2018). 2 For example, U Šadl and S Mair, ‘Mutual Disempowerment: Case C-441/14 Dansk Industri, acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen and ‘Case no 15/2015 Dansk Industri (DI) acting for Ajos A/S v The estate left by A’ (2017) European Constitutional Law Review 347, suggest that the preliminary ruling preceding the judgment of the Supreme Court of Denmark was itself provocative and left that Court with no alternative but to open fire. 3 Case C‑42/17 Criminal proceedings against MAS and MB EU:C:2017:936.

146  Lorna Armati down a ruling that would trigger the so-called controlimiti doctrine: of course not! Two very different approaches resulted in two very different outcomes. Was the Court bowing to subtle pressure in the Italian case? Or is the lesson to be learned a more optimistic one, of true dialogue and genuine mutual trust between the national and supranational judges? In what follows, I will offer some thoughts on whether these are acts of rebellion and whether, if so, the EU must respond in kind and defend its integrity against attacks from within its system. A first section will analyse the ruling of the Supreme Court of Denmark, allowing for comment on the general principles of EU law and the primacy of EU law over national law (including the obligation of consistent interpretation). In a second section, I will consider and contrast the approach of the Italian Constitutional Court and the suggestion that the ECJ had crossed a line in Taricco; gone beyond the limits of its jurisdiction (controlimiti). Indeed, while the Danish case raises worrying questions about how that Member State views the relationship between the national legal order and the supranational framework of EU law, the Italian case is another example of a Member State asserting what it sees as its right to protect the national legal order against too much of its supranational counterpart. A final section will look to the future, and the uncharted waters beyond: the impact these two contrasting approaches will have on the EU legal order and the weapons that it has available to it in order to defend itself against these apparent acts of rebellion. Of course, if (as it does in Kadi)4 the EU legal order can lay claim to an untouchable core, it becomes difficult to deny that same call from national legal orders. In ‘the very foundations of the EU legal order’ the ECJ has established a core that is not negotiable; an immoveable object. A mythological example of that paradox can be used to illustrate the stakes in the recent constitutional stand-off: when the Teumessian fox, who can never be caught, is pitted against the hound Laelaps, who never fails to catch what it hunts, Zeus – realising the paradox – turns both creatures into stone. The trick then, when these two legal orders form part of a common system, is to find ways to accommodate both of these creatures – without an unstoppable force (the EU legal order) meeting an immoveable object (the national legal order). Why do I say ‘unstoppable force’? Because that is the nature of the EU legal order: it is, in the words of a far-sighted English judge, ‘like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’5 But, and that will be my conclusion, a head-on collision is not inevitable and the lessons of the so-called Taricco saga should be taken to heart to channel the dialogue and allow the constitutional orders to maintain a dynamic relationship rather than becoming static, like Zeus’ stone statues. Finally, by way of introductory comment, it seems fair to say that of the three Member States that joined the European Economic Community in 1973, only Ireland threw itself whole-heartedly into the project. Despite my soon to be extra-communautaire origins, I will not comment on Brexit – but I do not think that the timing is innocent or the impact unimportant. For my, somewhat disheartening, feeling is that all these matters are linked, and just as Monnet saw that Europe would be built ‘step by step’, we must be careful to avoid it being dismantled in that same incremental fashion.

4 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461. 5 Lord Denning, delivering a judgment in 1974, in HP Bulmer Ltd v J Bollinger [1974] Ch 401, 418.

Acts of Rebellion, or the Enemy Within?  147

II.  The Danish Case While, for the purposes of the present contribution, the factual background to the Ajos case is relatively unimportant, a short introduction on the historical context in which the ruling of the Supreme Court of Denmark must be placed will allow a better understanding of the Danish perspective. That short introduction will be followed by a comment on the general principles of EU law. Indeed, the refusal to draw the consequences from the ruling of the ECJ is rooted in the controversial application of an unwritten prohibition of discrimination on grounds of age in cases involving two private parties. A reminder of how this author, together with Judge Rosas, views consistent interpretation also seems useful. On that basis, the reasoning and result of the ruling itself will be considered with a view to assessing whether it was a case of crossed wires, or lines being crossed.

A.  Historical Context As noted above, Denmark has, at best, displayed a rather sceptical approach to the European journey, and was the first Member State to produce a ‘No’ result in a referendum on Treaty amendments. Denmark also holds the dubious honour of already considering that certain initiatives which build on the Schengen acquis, if signed-up to by it, will create obligations that stem not from membership of the EU but as a matter of classic international law.6 However, its Supreme Court was not known for being particularly provocative. Even when it ruled that ‘EU law now so profoundly affected the lives of ordinary citizens’ that they have standing to bring cases before the Supreme Court, its 1998 Maastricht judgment borrowed heavily from the Brunner ruling and the approach of the German Federal Constitutional Court.7 Like their German colleagues, the Danish Supreme Court judges showed a pragmatic tendency to accept that a supranational entity such as the EU was necessarily dynamic, open-ended even: The fields of responsibility may be described in broad categories, and there is no requirement for the extent of the delegation of sovereignty to be stated so precisely that there is no room left for discretion or interpretation.8

That said, it did very clearly state its own version of the ultra vires doctrine: Danish courts must rule that an EC act is inapplicable in Denmark if the extraordinary situation should arise that with the required certainty it can be established that an EC Act which has been upheld by the EC Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Accession Act. Similarly, this applies with regard to

6 Protocol No 22 to the TFEU. See, for comment, A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018) 114. 7 Decision of the German Federal Constitutional Court, BVerfG 89, 155 of 12.10.1993. 8 See UfR 1998.800H (the ‘Maastricht ruling’). There is no official translation into English of the Maastricht ruling. The ruling of the Supreme Court of Denmark concerning ratification of the Lisbon Treaty does exist in English and quotes extensively from the Maastricht ruling; the passage quoted is taken from that translation, available at www.supremecourt.dk/supremecourt/nyheder/pressemeddelelser/Documents/Judgment%2015-2014.pdf.

148  Lorna Armati community-law rules and legal principles which are based on the practice of the EC Court of Justice.9

To spoil the surprise, that is precisely what it found had happened when the Ajos case came before it, but one intervening step deserves comment before we move on to the judgment in Ajos: the Lisbon ruling. To begin with, the Lisbon ruling cites extensively from the previous Maastricht judgment.10 The Lisbon ruling originated in a challenge to the ratification by the Danish government without a referendum. The judgment therefore purports to examine the question whether there had been a ‘new transfer of competence’, since such a transfer would have required a referendum in line with Article 20 of the Danish Constitution, but already foreshadows what happened next: The Court of Justice of the European Union is charged with settling any disputes on the interpretation of EU law, but this must not result in widening of the scope of Union powers.11

Or did, in fact, the Supreme Court specifically and expressly put out a call to arms? If an act or a judicial decision which has a specific and real impact on Danish citizens etc. raises doubts as to whether it is based on an application of the Treaties which lies beyond the surrender of sovereignty according to the Accession Act, as amended, this may be made subject to a judicial review, as stated in paragraph 9.6 of the Maastricht judgment. The same applies if EU acts are adopted – or if the Court of Justice delivers judgments – based on such application of the Treaties with reference to the Charter of Fundamental Rights.12

Indeed, while the Maastricht judgment had reflected the position of the German Federal Constitutional Court, the Lisbon ruling seems to display a hardened attitude that was absent in Karlsruhe. Note the subtle but important shift in language from the quote above as compared to the first statement of the ultra vires doctrine in the Maastricht judgment: the implication is that the likelihood of an ultra vires act is significantly increased (with no mention of an ‘extraordinary situation’), and the difference between establishing ‘with the required certainty’ that an act lies beyond the transfer of sovereignty and ‘raising doubts’ is stark, and startling. That said, the Danish Supreme Court found that the ratification of the Treaty of Lisbon without a referendum was constitutional, and feathers, while ruffled, were not plucked. Therefore, while it is true that the Danish Supreme Court has never done or said anything that would indicate a willingness to relinquish the last word on where the borders of EU law lie in the Danish legal order, nothing in the reference to the ECJ in Ajos indicated that the need to have that last word was at stake.13 9 ibid. 10 Ufr 2013.1451H (the ‘Lisbon ruling’). 11 ibid. 12 ibid. It is interesting to reflect on the chronology of a series of judgments around which the Ajos case revolves: the Maastricht ruling predated Mangold (Case C-144/04 Werner Mangold v Rüdiger Helm EU:C:2005:709), but the Lisbon ruling was handed down after Mangold and Kücükdeveci (Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG EU:C:2010:21), as well as the Honeywell decision of the German Federal Constitutional Court (BVerfG, BvR 2661/06 of 6 July 2010). 13 Neergaard and Sørensen suggest that the Supreme Court set a trap for the ECJ, U Neergaard and K Sørensen, ‘Activist Infighting among Courts and Breakdown of Mutual trust? The Danish Supreme Court, the CJEU, and the Ajos Case’ (2017) 36 Yearbook of European Law 275, 301.

Acts of Rebellion, or the Enemy Within?  149 Indeed, the reference might even have been qualified as surprising, given the clear line of case law.14 And the response from the Advocate General and then the Court were correspondingly unsurprising: EU law includes a general principle that prohibits discrimination on the grounds of age such that, where it is not possible to interpret national law in conformity with EU law, the national rule must be set aside.15 Thus, whether one agrees with what the Court did in Mangold or not, the Supreme Court of Denmark received a simple answer to a simple question.16 The Danish judges had not asked for a temporal limitation of the judgment (indeed, that ship had probably sailed since, as just noted, the matter had in fact been settled by the Court for a number of years); nor had they indicated (and I will come back to this below) the difficulty they would have, in light of their own constitution, to give effect to an unwritten general principle of EU law.

B.  General Principles of EU Law I read with interest the metaphor used by Mazak and Moser to describe the unveiling of general principles of EU law by the Court: allegedly, when Michelangelo was asked how he created the magnificent statue of David from a block of stone, he replied that he did not – David was in the stone, and all the sculptor did was to chip away the extra bits until David was revealed.17 That seems an apt reflection of what, together with Judge Rosas, we meant when we wrote that the Court ‘found’ rather than ‘made’ a list of unwritten general principles.18 It also chimes well with what former Judge Edward wrote of the EU legal order: it constitutes a system of law and not just an ad hoc collection of rules and diplomatic compromises written down in the treaties.19 In other words, if the early teachings of Van Gend en Loos20 are to be taken at their word, the Member States created ‘a new legal order’, and every provision of that legal order must be placed in that context and interpreted in the light of EU law as a whole, regard being had to the objective thereof and to its state of evolution at the date on which the provision in question is to be applied.21 It is not realistic to imagine that every aspect of that legal

14 It is useful to recall that the line of case law in question had started out controversially with the judgment in Mangold (Case C-144/04 Werner Mangold v Rüdiger Helm EU:C:2005:709), confirmed in Kücükdeveci (Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG EU:C:20010:21) and even, in the end, accepted as not being ultra vires by the German Federal Constitutional Court in Honeywell (BVerfG, BvR 2661/06 of 6 July 2010). 15 It might be noted in this respect that nothing should be inferred from the fact that the case was decided by the Grand Chamber since, perhaps in a mark of respect for the authority of the referring court, it is not uncommon that references from the highest jurisdictions in the Member States are sent to that formation for judgment. 16 Indeed, it has been suggested that the Supreme Court asked a question whose answer was practically a foregone conclusion; see M Rask Madsen, H Palmer Olsen and U Šadl, ‘Competing Supremacies and Clashing Institutional Realities: the Danish Supreme Court’s Decision in the Ajos Case and the National Limits of Judicial Cooperation’ (2017) 23 European Law Journal 140, 142. 17 J Mazák and M Moser, ‘Adjudication by Reference to General Principles of EU Law: A Second Look at the Mangold Case Law’, in M Adams, H de Waele, J Meeusen and G Straetman (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Oxford, Hart Publishing, 2013) 61. 18 A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018) 54. 19 D Edward, ‘The Role and Relevance of the Civil Law Tradition in the Work of the European Court of Justice’ in D Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law (Berlin, Duncker & Humblot, 1997) 316. 20 Case 26/62 van Gend en Loos EU:C:1963:1. 21 See to that effect Case 283/81 CILFIT and Lanificio di Gavardo EU:C:1982:335, para 20.

150  Lorna Armati order has been formulated in writing. What is more, to expect the same would be to deny the necessarily dynamic and evolving nature of that new legal order. Thus, even if over the years there has been a significant tendency to progressively codify developments that were initially expressed in the case law of the Court, all that is achieved is a crystallisation (together with any amendment or modification that the legislator has seen fit to provide for) of the unwritten principle, without which the written rules would have remained a disparate assortment of norms rather than a true legal order.22 The proposition that ‘the general principles of EU law have constitutional status’ therefore appears sound.23

C.  Primacy (and Consistent Interpretation) It does not appear to be contested that general principles of law, by their very nature an often unwritten source of law, are a part of the EU legal order. The first issue that deserves comment is therefore that of the primacy of EU law over national law, however framed.24 It is perhaps ironic that analysis of the reaction of the Danish Supreme Court to the acknowledgement by the ECJ of an unwritten principle prohibiting discrimination on grounds of age as part of EU law must begin with Costa v ENEL, often first in the firing line when it comes to accusations of judicial activism.25 And yet, as Judge Rosas himself has already stated, ‘the Communities would hardly have been able to survive if Community law, instead of prevailing over national law, would have become subject to a lex posterior principle’.26 Primacy is closely linked to the unity of the EU legal order and is quite simply an essential ingredient of that legal order if it is to function as such. The principle of primacy is perhaps less shocking if one remembers that EU law is, by its own force, part of the national orders of the Member States: that is the lesson in Simmenthal, in which the Court reminds us that the provisions of Community law are ‘an integral part of, and take precedence in the legal order applicable in the territory of each of the Member States’.27 The second important point to make before embarking on a commentary of the result reached by the Danish Supreme Court in Ajos relates to the principle of consistent interpretation: that duty is, for myself and for Judge Rosas, a corollary of the primacy of EU law.28 It is inherent in any legal system and serves to put into practice the presumption that the legislator does not generally intend to breach existing provisions of law when adopting new

22 A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018) 55. 23 Case C-101/08 Audiolux v Groupe Bruxelles Lambert and Bertelsmann EU:C:2009:626, para 63; Case C-174/08 NCC Construction Danmark v Skatteministeriet EU:C:2009:669, para 42. It seems important to note, in that context, that discrimination on the grounds of age is now expressly mentioned in Art 10 TFEU as something which the EU should aim to combat. 24 The Court was given the opportunity to clarify early on the primacy of what is now EU law, including over the national constitution: see Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114, para 3. 25 Case 6/64 Costa v ENEL EU:C:1964:66. 26 See A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018), ch 6B. 27 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal EU:C:1978:49, para 17. 28 See A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018), ch 6C.

Acts of Rebellion, or the Enemy Within?  151 rules and regulations. The novelty in the EU legal order is that it helps to put into context the absence of a lex posterior rule and is crucial to facilitating the application of national law in a manner consistent with EU law – even when that law pre-dates the relevant EU law. In other words, consistent interpretation is not a consolation prize, invoked to mitigate the absence of direct effect; it applies at the first stage of the analysis and serves to identify whether a conflict between national law and EU law even exists. As an interpretative technique, the task of searching for conformity will most often fall to the judge. And in carrying out that task, the judge (like all other authorities of a Member State) is bound by the duty of sincere cooperation (Article 4 TEU). But, and that seems only natural, the obligation weighing on the judge finds its limit at the outer edge of the law: national courts are required to interpret their national law as far as possible in the light of the wording and purpose of the relevant directive but are not required to reach a result that would be contra legem. What does that mean? That question is essentially for the national judge, with the Court providing certain guiding principles to assist in resolving the matter. It is clear from the case law that, first, the national judge must use all means available to him, and second, he must consider national law as a whole. I would add that, third, he must look at the matter not only from a national perspective, but also from the perspective of the supranational level that created the rule with which conforming interpretation is being sought. From the Danish perspective, the provision, as understood and interpreted by national courts including of the highest order, was clear and unambiguous. And yet, from an outside perspective, the conviction of the Danish court appears to disregard the nuance that the judge may be in a position to choose between a number of possible interpretations, as well as the case law of the Court to the effect that the duty of consistent interpretation includes a duty to change case law, if necessary, and to temper emphasis on any preparatory works.29 What is more, the Danish judges’ entrenchment in their own techniques of interpretation appears blinkered when the description of the obligation itself focuses on the wording and purpose of the provision of EU law, with a view to ensuring its effectiveness. In other words, reducing to the minimum the elements of national law against which a duty of consistent interpretation will hit the brick wall of contra legem would appear to be in line with the purpose of the duty in the first place: to facilitate the assertion of the primacy of EU law. Because it is the primacy of EU law that is at stake. If Danish law had introduced a prohibition of discrimination on the grounds of age, the Danish judges would surely have interpreted the provision of the Salaried Workers Law accordingly, would have changed their case law and would have achieved the desired result of prohibiting discrimination on the grounds of age. Refusing to give a binding norm of EU law the same effect as a binding norm of national law breaches what may be called the principle of procedural equivalence, and strikes at the heart of the primacy of EU law. The Advocate General was therefore correct to focus on the duty to interpret, if at all possible, national law consistently with EU law, and the ECJ quite rightly recalled that ­obligation in its ruling on the Ajos reference. 29 See to that effect D Edward, ‘CILFIT and Foto-Frost in their Historical and Procedural Context’, in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the occasion of the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 179.

152  Lorna Armati But the Danish Supreme Court dug in its heels. It was entitled to do so – the decision as to whether conforming interpretation is possible rests with the national judge. But in so doing, the Supreme Court necessarily took the analysis to the next level.

D.  Reasoning and Result in the Danish Case: Crossed Wires, or Lines Being Crossed Given the exploration of whether there was a breakdown in judicial dialogue that runs through this contribution, it seems important to note at the outset that the Supreme Court of Denmark accepts that the ECJ has jurisdiction to rule on questions concerning the interpretation of EU law and therefore sets out to consider whether the principle in question should be considered to be part of EU law in Denmark. While this may be taken as some effort at goodwill on the part of the Danish judges, it is a quite remarkable whitewashing of the core issue of the primacy of EU law over conflicting national provisions. The Danish judges acknowledge the existence of the general principle of EU law, they do not call into question the primacy of EU law, but they side-step the logical conclusion by finding that, for the purposes of the case at hand, the principle in question has not been made part of the Danish legal order and therefore the ruling of the ECJ interpreting that principle is quite simply not binding on the Supreme Court. Having thus set the scene, it is useful to go back to the terms in which the question referred to the ECJ was framed: in essence, can the Danish court weigh the principle prohibiting discrimination on grounds of age against that of legal certainty in order to conclude that the latter must take precedence? In its judgment in Ajos,30 the ECJ responded by going back to first principles: where national legislation is contrary to EU law, the courts must provide the legal protection which an individual derives from EU law and ensure that the provisions of EU law are fully effective (para 29 and repeated in para 35 after a brief digression on consistent interpretation); the principle in question enjoys horizontal direct effect, thus requiring the national courts to disapply the national law that conflicts with the principle (para 36); and with that in mind, a national court cannot rely on the principle of the protection of legitimate expectations in order to continue to apply the offending national provision (para 38). But what of the balancing that was the essence of the question referred? The ECJ deals with that in paragraph 39 by observing that what the national court was in reality asking was that the effects of the judgment be limited in time, and follows on with a reminder of the state of the law in that respect: limitation of the temporal effects of a judgment may only be considered in truly exceptional circumstances31 and certainly not in respect of the ­individual whose case is being heard (paras 40 and 41).

30 Case C-441/14 Dansk Industri, acting on behalf of Ajos v Estate of Karsten Eigil Rasmussen (Ajos) EU:C:2016:278. 31 The judgment includes a, with hindsight, perhaps unfortunate observation to the effect that no such circumstances were invoked in the present case. Probably because the Supreme Court was not asking that the effects of the judgment be limited in time. For a comment on whether it should have, see R Holdgaard, D Elkan and GK Schaldemose, ‘From Cooperation to Collision: The ECJ’s Ajos Ruling and the Danish Supreme Court’s Refusal to Comply’ (2018) 55 Common Market Law Review 17, 39–41.

Acts of Rebellion, or the Enemy Within?  153 If in fact the national court had made a request to limit the temporal effects of the judgment, the case law cited by the Court is well-established. But it seems more likely that the referring court really was asking whether it could engage in a balancing exercise. The unexpectedness of the existence of the prohibition against age discrimination appears to be at the root of the way in which the Supreme Court approached the case, and certainly explains the reference to the legitimate expectations of employers such as Ajos. But it does nothing to address the legitimate expectations of the employees who, since Mangold (applied to the Danish context in Andersen)32 were entitled to expect that the courts will provide the legal protection which an individual derives from EU law and ensure that the provisions of EU law are fully effective.33 As such, the question may in fact be understood as asking whether the proclamation of the general principle prohibiting discrimination on the grounds of age complied with the requirements of legal certainty, which is a far more provocative ‘are you sure’ reiteration of the first question (as to whether Mangold and Kücükdeveci are good law). The principle of legal certainty is a fundamental principle of EU law.34 It follows from the case law that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear, precise and predictable in their effect, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly.35 Either legal certainty is respected, or it is not. Balancing implies two norms of equal value and a case-by-case assessment of which interest deserves to prevail in any given set of circumstances. It is useful when applying the principle of proportionality: was there a less intrusive way to achieve the same result, a compromise that better took account of both sides of the story? Legal certainty does not seem to lend itself to a balancing exercise.36 This may explain why the Court chose to interpret the second question as one of temporal effects. However, and as noted above, the Danish Supreme Court therefore had no option but to take note of the reiteration by the ECJ of its by now settled case law concerning the existence of a general principle of EU law prohibiting discrimination on grounds of age, which it clearly did not find convincing. And that is the springboard for the analysis of the Law on Accession and the quite shocking conclusion that the principle in question, identified by the ECJ as part of EU law, could not be termed as such in Denmark. The conclusion is reached by means of a detailed, if apparently results-oriented, de-construction of the Law on Accession. There have been numerous commentaries published on the reasoning of the majority ruling (importantly, one judge issued a dissenting opinion). For the purposes of the present exploration of a breakdown in judicial dialogue and the mutual trust that is an essential ingredient of its success (and indeed of the integrity of the EU legal order), four elements that may be characterised as ‘acts of rebellion’ will be highlighted. 32 Case C-499/08 Ingeniørforeningen i Danmark, acting on behalf of Ole Andersen EU:C:2010:600. 33 See, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others EU:C:2004:584, para 111; Case C‑555/07 Kücükdeveci EU:C:2010:21, para 45. 34 Case C-72/15 Rosneft Oil Company v Her Majesty’s Treasury EU:C:2017:236, para 161. 35 ibid, and Case C-5/16 Poland v Parliament and Council EU:C:2018:483, para 100. 36 See to that effect Case C‑361/14 P Commission v McBride EU:C:2016:434. Contrast R Holdgaard, D Elkan and GK Schaldemose, ‘From Cooperation to Collision: The ECJ’s Ajos Ruling and the Danish Supreme Court’s Refusal to Comply’ (2018) 55 Common Market Law Review 17, 37, who suggest that the Court should have ‘engage[d] seriously’ with the core of the question referred.

154  Lorna Armati First, the Supreme Court took the view that, in a case involving two private parties, the list of EU Treaties and other acts to which Denmark has acceded – from the Treaty of Rome to the Treaty of Lisbon – is an exhaustive list of the EU law which has been made part of the Danish legal order. This is to deny the existence of an EU legal order, a system, rather than an ad hoc collection of rules, implying more than a sum of its parts.37 The lack of a reference to those treaties in the judgments proclaiming the existence of the general principle prohibiting discrimination on the grounds of age is thus seen as fatal in a case involving two private parties. Second, the Supreme Court then ‘checks’ that conclusion against the various preparatory works of the Law on Accession and its subsequent amendments (the last of which dates from the ratification of the Lisbon Treaty in 2009). The judgment acknowledges that it was indeed already known, even in 1972, that the Court could (and would) develop general principles of EU law. But it was not foreseen that those principles would have ‘direct applicability in disputes between private parties’.38 And yet, ‘general principles of law exist without necessarily having a basis in written legal sources’.39 And primary law, including the general principles of EU law, is directly applicable, in the sense that it has entered into force and must be applied, in the broad sense of the term, not only by the EU institutions but also in the national legal orders. The ruling of the Supreme Court denies this simple statement of what it means for an EU law norm to come into existence, at least in the Member States which adopt a dualist approach to international law. In this sense, the conclusion drawn by Madsen et al is compelling: the consequence of the ruling of the Supreme Court is that every single national constitution creates its own variation of EU law.40 EU law is thereby transformed: from being an autonomous legal order it becomes a play thing of the national political process (as embodied in the various ratification procedures). Third, the Supreme Court once again appears to ‘double-lock’ its conclusion by noting that the judgment in Mangold predates the most recent amendment to the Law on Accession but was not mentioned in the preparatory works (and drawing the implication that there was therefore no intention to recognise the principle identified in that case, since it had not yet been established whether it could be outweighed by legitimate expectations). Not only is this circular – predicating the incorporation of the principle into the Danish legal order on a reply to its question in the pending case – it also freezes EU law in time, once again denying the existence of an autonomous legal order. In Mangold, the ECJ established the existence of a general principle. Subsequent case law has done nothing to call that ruling into question. At what point does the expectation that an unwelcome judgment will be overturned cease to be legitimate? What is more, the analysis does not hold up to

37 D Edward, ‘The Role and Relevance of the Civil Law Tradition in the Work of the European Court of Justice’ in D Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law (Berlin, Duncker & Humblot, 1997) 316. 38 On the basis on the description above of what it means for a norm to be directly applicable, and the use of that term and ‘direct effect’ interchangeably in the Danish original, it must be assumed that what the Supreme Court was referring to was in fact the notion of direct effect. 39 See, to that effect, Joined Cases 7/56 and 3/57 to 7/57 Algera v Common Assembly of the ECSC EU:C:1957:7. See to that effect, T Tridimas, The General Principles of EU Law (Oxford, Oxford University Press, 2006) 1, at which the author opines that ‘[g]eneral principles may be expressly stated … or deduced by a process of interpretation’. 40 M Rask Madsen, H Palmer Olsen and U Šadl, ‘Competing Supremacies and Clashing Institutional Realities: the Danish Supreme Court’s Decision in the Ajos Case and the National Limits of Judicial Cooperation’ (2017) 23 European Law Journal 140, 150.

Acts of Rebellion, or the Enemy Within?  155 comparison with other judgments of the Supreme Court rendered in the intervening period (notably the judgment on the ratification without a referendum of the Lisbon Treaty).41 The Lisbon Treaty accords the status of primary law to the Charter of Fundamental Rights. That document contains a specific expression of the prohibition of discrimination on grounds of age. The Supreme Court ruled that the Lisbon Treaty did not entail any new transfer of competence. Thus that prohibition must already have been part of EU law and covered by previous transfers of competence. Fourth, and finally, all of these points and the reasons for which they were not compelling were concisely and convincingly laid out in the dissenting opinion of Judge Scharling, which rather suggests that the majority view was to take a stand and to openly revolt. What went wrong? How did the essential objective of the Article 267 TFEU procedure, to ensure that EU law is applied uniformly by national courts, become so distorted?42 And how did what was a rather straightforward preliminary ruling provoke such a strong reaction from the national judge to whom it was addressed? The answer may be as simple as a breakdown in communications.

III.  The Italian Case Again, by way of introduction, some historical context appears useful. That, coupled with the different approach and the launching of a real ‘constitutional conversation’ by the Italian judges, will allow the resulting judgment to be presented as a Roman virtuoso, rather than a Nordic saga.

A.  Historical Context It has been opined that the Italian Constitutional Court has been engaged for 20 years in a bloody war as regards the ECJ and its jurisdiction.43 What is not clear is who that war has been with, and whether it rages on. The relationship (sic!) between the Italian Constitutional Court and the ECJ began with a simple application in 1960 of the lex posterior rule: national law, if later in time than the relevant rule of what was then Community law, would take precedence. This was a natural consequence of the Italian (dualist) approach to international obligations and the incorporation of the Treaty of Rome into the Italian domestic legal order by an act of ordinary law. Less natural, from the point of view of that ‘new legal order’, identified by the ECJ in Van Gend en Loos, was the time it took for the Italian Constitutional Court to catch on; for it was only in 1973 that it identified a constitutional ‘source’ for what is now EU law, thereby

41 Judgment handed down on 20 February 2013. The reference to the ECJ in the Ajos case was made on 22 September 2014. 42 Case C-72/15 Rosneft Oil Company v Her Majesty’s Treasury EU:C:2017:236, para 80; Case C-366/10 Air Transport Association of America v Secretary of State for Energy and Climate Change EU:C:2011:864, para 47. 43 O Pollicino, ‘The Italian Constitutional Court and the European Court of Justice: a Progessive Overlapping between the Supranational and the Domestic Orders’ in M Claes, M de Visser, P Popelier and C Van de Heyning (eds), Constitutional Conversations in Europe (Cambridge, Intersentia, 2012) 101, 120.

156  Lorna Armati making sure that the lex posterior rule would no longer be used to solve a conflict between domestic and European law. What is more, what were extended were far from open arms; for it was in Decision no 83/1973 that the Italian Constitutional Court first referred to what it called the doctrine of controlimiti.44 It was by then clear in the case law of the ECJ that the Member States had ‘limited their sovereign rights’,45 and what the Italian Constitutional Court sought to emphasise was that the limiting had its limits.46 Having made its role clear and secured its position as ultimate guardian of the Italian Constitution, the Italian Constitutional Court then exiled itself to splendid isolation, in a decision which held expressly that it was not a ‘court or tribunal’ within the meaning of what is now Article 267 TFEU and thus could not send a reference to the ECJ.47 That position was softened in 2008 when, ostensibly for reasons pertaining to the importance of the uniform application of EU law, the Italian Constitutional Court made its first ever reference to the ECJ. I say softened, because a distinction was drawn between the two types of proceedings that could come before the court (direct and incidental), where only the former could possibly lead to a question by the Constitutional Court. A further reference was made in 2013 (C-418/13) and then in 2017, the Italian Constitutional Court – a relative novice, when it came to the preliminary ruling procedure and the judicial dialogue which underpins it – displayed a mastery of the process that stands in sharp contrast to that of its Danish counterpart and achieved, as will be argued below, an optimum result in terms of upholding the legitimacy of the EU legal order and its judicial organ, without bending its own constitutional bow. It is that reference, C-42/17 MAS and MB, to which I shall now turn.

B.  Taricco II: A Viking Saga Turned Virtuoso Again, the precise facts of the Taricco case, and the MAS case that followed it, are of secondary importance. Suffice it to say that the ECJ rendered what, this time, it must surely have recognised to be a rather provocative judgment finding that the judicial system in Italy was such that, given the national rules on statutory limitation, serious VAT fraud was left unpunished and that national courts were therefore obliged to disapply those rules.48 Confronted with this attack on the courts and their functioning, the Italian Constitutional Court chose dialogue rather than revenge.49 In stark contrast to the reference sent by the Supreme Court 44 First referred to in Frontini, judgment no 183/1973, and subsequently developed in Granital, judgment no 170/1984, and FRAGD, judgment no 232/1989. 45 Case 26/62 van Gend en Loos EU:C:1963:1; Case 6/64 Costa v ENEL EU:C:1964:66. 46 As an aside, it may be interesting to note that if this attitude is based on the idea of a constituent power and whether it is within the grant of that authority to cede totally control, an interesting parallel is to be found in the more recent case law of the ECJ and the idea, first expressed in Kadi (Joined Cases C-402/05 P and C-415/05 P, EU:C:2008:461), that there are certain fundamental values which cannot be touched, even by the legislative branch of authority. But the purpose of this contribution is not to consider the legitimacy of the various positions expressed by national constitutional courts and reserving to themselves the role as ultimate arbiter of the validity of EU law. 47 Judgment no 536/1995 of the Corte Costituzionale (Constitutional Court, Italy). 48 Case C-105/14 Criminal proceedings against Ivo Taricco EU:C:2015:555. 49 For a suggestion that the motives of the Italian Constitutional Court may have been less than pure, see Pollicino, ‘The Italian Constitutional Court and the European Court of Justice: a Progessive Overlapping between the Supranational and the Domestic orders’ in M Claes, M de Visser, P Popelier and C Van de Heyning (eds), Constitutional Conversations in Europe (Cambridge, Intersentia, 2012) 101.

Acts of Rebellion, or the Enemy Within?  157 of Denmark, the Italian judges set out in great detail the precise constitutional difficulties that would be created by the judgment in Taricco and explained how and why the result appeared to be based on a misunderstanding of the Italian Constitution. Key to the Taricco ruling, and to what happened next, was the finding that disapplication of the Italian limitation periods would not infringe the principle of legality of criminal offences and penalties, enshrined in Article 49 of the Charter. Following referrals to it, the Constitutional Court decided to send the matter once again to Luxembourg, explaining, as noted above, that the obligation identified in Taricco to disapply domestic rules on limitation periods was contrary to Article 25 of the Italian Constitution. The stage seemed set for the ECJ to confirm that EU law takes precedence over national law, however framed, and that Taricco therefore stands. And yet, the impression seems to be that for the first time, the Court resolves a conflict between valid EU law and a national fundamental right in favour of the latter.50 Why? And at what cost? Perhaps the dialogue was the revenge … The circumstances of the referral are a perfect example of the fact that, without prejudice to its authority, a preliminary ruling does not preclude the national court to which it is addressed from properly taking the view that it is necessary to make a further reference to the ECJ before giving judgment in the main proceedings. According to well-established case law, such a procedure may be justified when the national court encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the Court, or again when it submits new considerations which might lead the Court to give a different answer to a question submitted earlier.51 And indeed, the Court began with some preliminary observations recalling the nature and objective of the procedure provided for in Article 267 TFEU and mentioned specifically the elements (in fact crucial) that were not put before it in Taricco, and that would therefore guide its approach to the new referral. As a first comment, that is a somewhat benevolent introduction to a reference that amounted, in effect, to a not-so-veiled threat to activate the so-called controlimiti doctrine, reminiscent, as noted by the Advocate General,52 of the provocative reference by the German Federal Constitutional Court in Gauweiler.53 The Italian Constitutional Court does not ask the ECJ to review the principles that can be derived from Taricco. Indeed, on the basis of the case law allowing for continued dialogue, it is not permissible to use the right to refer further questions to the ECJ as a means of contesting the validity of the judgment delivered previously, as this would call in question the allocation of jurisdiction as between national courts and the Court of Justice under Article 267 TFEU.54 Rather, the ECJ is asked, given the new information on the content of the principle of legality as it is understood in the Italian legal order, to confirm whether the obligation identified in Taricco is, in those circumstances, binding on the national courts. Thus, Taricco stands, and the ECJ in MAS is keen to reinforce that impression. It begins

50 See, to that effect, C Rauchegger, ‘National constitutional rights and the primacy of EU law: MAS’ (2018) 55 Common Market Law Review 1521. 51 Order of 5 March 1986 in Case 69/85 Wünsche Handelsgesellschaft EU:C:1986:104, para 15. 52 Opinion of Advocate General Bot of 18 July 2017 in Case C-42/17 Criminal proceedings against MAS and MB EU:C:2017:564, para 10. 53 Case C-62/14 Gauweiler EU:C:2015:400. 54 Order of 5 March 1986 in Case 69/85 Wünsche Handelsgesellschaft EU:C:1986:104, para 15.

158  Lorna Armati by citing at length from that earlier judgment, reiterating each of the main conclusions, ­including that the national rules on limitation (and, more specifically, interruption thereof), do not comply with Article 235 TFEU (a directly effective provision of primary law). The ECJ then takes a side-step (in paragraph 43), to ‘add [to Taricco] that protection of the financial interests of the EU is a matter of shared competence and that ‘at the material time’ the rules on limitation periods and their interruption had not been harmonised. It is in this way that the Court cuts through the various arguments/insinuations as to the content of the principle of legality in the Italian legal order:55 Italy is free to have its own definition of that principle. It is important to note that the ECJ makes no value judgment as to the scope of the rule or indeed whether it guarantees ‘a higher standard of protection’, as had been argued by the referring court in order to invoke Article 53 of the Charter. The judgment makes no reference at all to that provision and is, in the first instance, more reminiscent of judgments such as Omega (C-36/02, EU:C:2004:614). The issue is no longer a question of whether a national court can refuse to comply with the obligation laid down in Taricco: competent national courts are required to protect fundamental rights of the persons accused and remain free to apply the national standard, provided the protection guaranteed by the Charter is not compromised (I will come back to the second part of the proviso in a moment). The principle of legality is important and, pursuant to Article 49 of the Charter, must be observed by the Member States when they implement EU law. The obligation to ensure the effective collection of the EU’s resources cannot run counter to that principle.56 In other words, the question has become one of a hierarchy of EU norms with the fundamental right winning out over the Treaty-based obligation.57 Move along now, nothing to see here. Coming back to the proviso, the ECJ then checks the level of protection guaranteed by the Charter, which in the case of Article 49 coincides with that enshrined in Article 7(1) ECHR, and which demands that provisions of criminal law comply with the requirements of foreseeability, precision and non-retroactivity. The national court is then given the task of ascertaining whether the finding in Taricco creates a situation of uncertainty incompatible with those requirements. But what of the primacy, unity and effectiveness of EU law? The silence of the Court as to those matters resonates loudly – why was no mention made of the rule developed in Melloni58 and Åkerberg Fransson59 and in such need of further explanation? Perhaps because, as formulated by the Court, the issue was confined to a conflict within the EU legal order (thus, no problem for primacy) and ensuring that the higher norm prevails, i.e. Article 49 of the Charter as opposed to Article 235 TFEU, can hardly create issues for the unity and effectiveness of EU law … can it?

55 The AG describes what essentially amounts to guaranteeing that a criminal must know how long his lawyer’s delaying tactics are to be spun out in order to ensure that the offence becomes time-barred as ‘not a novel issue’ and refers to numerous damning reports in that respect; see the preliminary observations at paras 52 and following of the Opinion of Advocate General Bot of 18 July 2017 in Case C-42/17 Criminal proceedings against MAS and MB EU:C:2017:564. 56 Case C-42/17 Criminal proceedings against MAS and MB EU:C:2017:936, para 52. 57 A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018), ch 5. 58 Case C-399/11 Melloni EU:C:2013:107. 59 Case C-617/10 Åkerberg Fransson EU:C:2013:105.

Acts of Rebellion, or the Enemy Within?  159 Does this judicial sleight of hand bear closer inspection? It has been suggested that the difference in the treatment of the MAS and Melloni cases could be explained by the fact that the former is an ‘internal case’ (in contrast to Melloni, which concerned the European Arrest Warrant and thus was, by definition, addressing cross-border situations). And yet, and this is perhaps why the silence is to be regretted, a Member State in which ‘a significant number of cases of serious fraud affecting the financial interests of the Union’ goes unpunished will almost certainly act as a magnet for the perpetrators of such fraud, setting off a chain reaction of effects that leads us back through reduced VAT receipts in Italy, to the same phenomenon in other Member States from whence liability for VAT is redirected and finally, through the need to supplement the shortfall in the EU budget from other sources, to every citizen in every Member State.60 And yet, the Italian Constitutional Court got what it wanted; and it must also be assumed that the ECJ was happy to avoid another rebellion.

IV.  Uncharted Waters These are the acts of rebellion – the instances of open confrontation (including proactive avoidance thereof). But what of the waters below, running still and deep; what of the iceberg that lies under the surface? It is to the silent masses that this final section is devoted, because far more ominous than the tip of the iceberg and the courts that seek dialogue even if in the end they wish the ECJ had held its tongue, is the simple indifference to their EU obligations of many others. It is a matter of statistics: considering all the very many judgments that are rendered across the EU in all the very many areas in which EU law plays a role, the references sent to Luxembourg remain startlingly few.61 I say ‘startlingly’ because the bar for not asking the question is set very high, particularly for courts of last instance. If the correct application of EU law appears obvious to the national court, it must, in order to be relieved of the obligation set out in Article 267(3) TFEU, be convinced that it would be equally obvious to the courts of other Member States and to the Court of Justice. In making that assessment, the national court must take account of the ‘characteristic features of Union law and the particular difficulties to which its interpretation may give rise’, including the fact that EU law is drafted in several languages, all equally authentic, and uses terminology specific to it, and that legal concepts do not necessarily have the same meaning in all the Member States and that provisions of EU law must be construed in their context (a so-called teleological interpretation).62 Read in the light of Article 99 of the Rules of Procedure of the Court of Justice, the national court must consider whether there is scope for reasonable doubt as to the manner in which the question raised is to be resolved. Judge Edward may have been correct when

60 See, to that effect, Opinion of Advocate General Bot of 18 July 2017 in Case C-42/17 Criminal proceedings against MAS and MB EU:C:2017:564, para 97. 61 For a detailed consideration of this issue, see M Bobek, ‘Of Feasibility and Silent Elephants: The Legitimacy of the Court of Justice through the Eyes of National Courts’, in M Adams, H de Waele, J Meeusen and G S­ traetman (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Oxford, Hart Publishing, 2013) 197. 62 Case 283/81 CILFIT and Lanificio di Gavardo EU:C:1982:335, para 16.

160  Lorna Armati he noted that what are referred to as the CILFIT criteria are ‘no more than common sense’,63 but that does not make the cases in which there will be no such reasonable doubt any more numerous. What is more, if the obligation contained in Article 267(3) TFEU is toothless, the strictness of the criteria becomes rather a moot point. And when, in the face of a flagrant breach of that obligation (as I would argue the failure to refer a new question in Ajos was), no infringement is brought, the silent masses may be forgiven for thinking themselves free to ‘take or leave’ their European mandate. And yet, two points must now be made to qualify that conclusion. First, the law in Denmark had been modified in the meantime, such that situations like that of the employee in Ajos would be naturally limited. This does not provide an entirely satisfactory response to the question of what might have happened next, but it goes some way to suggesting why the Commission did not react to the ‘rebellion’. Second, the Commission has since brought an infringement action against a national court (the Conseil d’Etat, France) for failure to refer a question in violation of the obligation laid down in Article 267(3) TFEU. On a reference from the Conseil d’Etat, the ECJ found that a difference in treatment between dividends distributed by a resident subsidiary and those distributed by a nonresident subsidiary was contrary to Articles 49 and 63 TFEU.64 In following up on the case, the Commission found that the national court appeared to be having difficulty in drawing the correct conclusions from the judgment in Accor. In such a situation, the dialogue between judges created by Article 267 TFEU should come into its own: the Commission found that follow-up questions, far from calling into question the authority of the original ruling, are the natural consequence of that dialogue and contribute rather to reinforcing the effectiveness of judicial cooperation.65 The Commission started infringement proceedings which culminated in a finding that it was for the Conseil d’Etat, as a court or tribunal against whose decisions there is no judicial remedy under national law, to request a preliminary ruling in order to avert the risk of an incorrect interpretation of EU law.66 In other words, that court should have realised that the interpretation of EU law was not so obvious as to leave no scope for doubt. Of course, what the Danish court did was to effectively reduce the matter to the first of the CILFIT criteria (not the scope for doubt as to the solution, but the relevance of the question), thereby seeming to comply with Article 267(3) TFEU: if the principle in question is not part of EU law as far as Denmark in concerned, any question of how that principle must be interpreted cannot be relevant for the outcome of the case. 63 D Edward, ‘CILFIT and Foto-Frost in their Historical and Procedural Context’, in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the occasion of the 50th ­Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 179. 64 Case C-310/09 Accor EU:C:2011:581. 65 A second question for clarification was asked to good effect, for example, in the cases leading to the judgment of 30 June 2011 in Case C-262/09 Meilicke EU:C:2011:438 (following on from Case C-292/04, EU:C:2007:132); and judgment of 13 November 2012 in Case C-35/11 Test Claimants in the FII Group Litigation EU:C:2012:707 (following on from Case C-446/04, EU:C:2006:774). An earlier example of the phenomenon may also be found in the Sunday Trading cases, in relation to which follow-up questions emphasising the importance of the background and context allowed a more nuanced approach by the ECJ and a greater appreciation of national sensibilities (see, eg Case C-145/88 Torfaen Borough Council EU:C:1989:593). 66 Case C-416/17 Commission v France EU:C:2018:811, para 113.

Acts of Rebellion, or the Enemy Within?  161 However, I would suggest that engaging in the debate is a more fruitful way to seek rulings that show a greater sensitivity to or at least a deeper understanding of the national perspective. The ECJ is resourceful and perhaps also mindful of the mutual disempowerment that open conflict or judicial impasse would engender. And the lesson I draw from the various issues discussed in this contribution is that when positions are explained and the Article 267 TFEU procedure is used to engage in a real conversation, the outcome is more satisfactory for all parties concerned. And ‘good examples’ of the procedure will be the best incentive for other judges to truly take up the European mandate with which they were entrusted 60 years ago. If, alongside a development in that direction, the Commission shows a willingness to encourage the process by acting against instances of wilful mutiny, so much the better.

V.  Concluding Remarks As 2018 draws to a close and I write this concluding section, I am struck by an Opinion piece in the Guardian newspaper recounting the tale of a school teacher who asked his pupils to ‘make the case’ for Christmas – for otherwise it would be cancelled. The exercise exposed ‘what looked like a rock solid consensus for the fragile thing that it must always have been. Once that illusion of consensus is gone, we are learning that force of habit or custom is no longer enough to hold things together.’67 How apt. Without a judge, there is no rule of law. Without the preliminary reference procedure, there would never have been an EU legal order. Now both these truths appear to have been challenged. And while we must strive to preserve in a passionate and convincing defence of the Court of Justice as an institution and its authority as an essential element of that institution, we must not underestimate the blow that is simultaneously struck to the edifice by the simple fact of having to make such a defence. What led the Supreme Court of Denmark to open revolt? As noted by Judge S­ charling, the Court’s ‘law-making activities [sic] within the framework of the Treaties and its interpretative style were known’, the judgment in Mangold and the resulting general principle prohibiting discrimination on grounds of age were also known and no reservation was made by the Danish government in either respect in the subsequent amendments to the Law on Accession. Did the Danish judges expect the judges in Karlsruhe to do the dirty work? Was the call to arms in the Lisbon ruling a reaction to the development in the Honeywell judgment that they wouldn’t? No matter the reasons, the highest judicial authority of a Member State saw fit to block unwelcome incursions into the legal order whose job it is to protect. And yet, therein lies the fundamental mismatch in perceptions: the EU and its legal order cannot be viewed as the ‘other’. In that sense, if it must at all be viewed as an enemy, then it is the enemy within. But years of intellectual exchange with Judge Rosas preclude me from ending on such a pessimistic note. And I will therefore close my contribution to this celebration of his influence and unwavering interest in and championing of EU law with a reflection on the 67 Opinion piece by G Hinsliff, ‘The teachers asking pupils to make the case for Christmas have a lesson for us all’ (The Guardian, 7 December 2018).

162  Lorna Armati Teumessian fox and his hunter Laelaps. If an unstoppable force (EU law) is something with infinite inertia, then it seems to follow that it cannot be moved from its path, and is therefore an immovable object. Conversely, if an object whose momentum or motion cannot be changed is immoveable (national law), then it would deflect any object in its path, thereby making it an unstoppable force. Which seems in perfect keeping with the ebb and flow of Lord Denning’s tide.

11 The Principle of Mutual Trust in the Area of Freedom, Security and Justice Some Reflections on its Corollaries CLEMENS LADENBURGER*

I. Introduction According to Article 3(2) TEU, one of the European Union’s most prominent objectives is to offer its citizens an area of freedom, security and justice without internal frontiers. That area can only be successfully built if it is based on mutual trust between Member States. It is such mutual trust that underpins the principle of mutual recognition, which in turn has been, since the Tampere European Council of 1999, qualified as the ‘cornerstone’ of judicial cooperation in civil and in criminal matters. Meanwhile, mutual trust has itself become a ‘principle’ recognised by the Court of Justice (ECJ, or Court), and in the EU’s Justice and Home Affairs world hardly any other concept has been as forcefully developed by the Court and as intensely debated by academia. Allan Rosas has closely followed this development and shaped it in the Court.1 I vividly remember a conversation at the FIDE conference of 2012 in Tallinn, where he directed my interest to the issue of child abduction, an area in which the case law of the European courts in Luxembourg and in Strasbourg were at risk of diverging. It has been his strong belief that the EU should be able to develop a common judicial space where Member States trust each other as regards compliance with fundamental rights so that, eg, European Arrest Warrants (EAW), or civil and commercial judgments, may ultimately become enforceable in much the same way as today within one country, and that the dealings between, say, Belgium and France should be fundamentally different from those between Belgium and Azerbaijan. The European Convention on Human Rights (ECHR or Convention) could, and should, be

* All opinions are strictly personal. The author owes thanks to very valuable comments received by his colleagues Bernd Martenczuk, Rudi Troosters, Martin Wasmeier and Geert Wils. 1 See A Rosas and L Armati, EU Constitutional Law (Oxford, Hart Publishing, 2018) 180–82; and see in ­particular the Court’s first judgment expressly referring to mutual trust in this area: Joined Cases C-411/10 and C-493/10 NS and others EU:C:2011:865.

164  Clemens Ladenburger interpreted in a way accommodating such a development which he saw as inherent in the logic of the Lisbon Treaty. Some years on, both European courts have already built an impressive, much-commented case law on ‘mutual trust’, especially in three areas covered by Title V of the TFEU: judicial cooperation in civil and in criminal matters, as well as the Common European Asylum System. The direction taken by the two courts first seemed to confirm Allan Rosas’ concern of 2012: after some dissonance – perceived or real – between the two courts on the Dublin Regulation and in child abduction cases, in its Opinion 2/13 the Court of Justice strongly affirmed mutual trust as a principle ‘of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained’.2 According to the Court, pursuant to that principle, Union legislation may3 require that ‘one Member State may not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law’ and that, ‘save in exceptional cases, it may not check whether that other Member State has actually, in a specific case, observed f­ undamental rights.’ Somewhat as a reply, the Strasbourg Court, in its Avotins judgment, declared itself ‘mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred … and of the mutual trust which they require’, and considered ‘the creation of an area of freedom, security and justice in Europe … to be wholly legitimate in principle’; but at the same time it warned that ‘limiting to exceptional cases the power of the State in which recognition is sought to review the observance of fundamental rights by the State of origin of the judgment could, in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin’.4 Lately, signs have again pointed in the direction of convergence of the two European courts. Several cases have led the Court of Justice to focus more on the limits of mutual trust and to acknowledge situations in which protection of fundamental rights may, after all, require one Member State to distrust the action of another Member State, even where this is not foreseen by the legislator.5 Members of the Court of Justice have emphasised that mutual

2 Opinion 2/13, EU:C:2014:2454, on a draft agreement on the EU’s accession to the ECHR, paras 191–94. 3 We agree with those who point out that the principle of mutual trust has legal effect between Member States only where and to the extent the EU legislator has implemented it by creating schemes of mutual recognition or cooperation, cf, eg, S Prechal, ‘Mutual Trust Before the Court of Justice of the European Union’ (2017) 2 ­European Papers 75, 79. That also somewhat relativises the meaning of words ‘save in exceptional cases’ in the Court’s statement. 4 Judgment in Avotiņš v Latvia, App no 17502/07 (ECtHR, 23 May 2016), paras 113 and 114. 5 A development also stressed in A Rosas and L Armati, EU Constitutional Law (Oxford, Hart Publishing, 2018) 182; in more depth see J-P Jacqué, ‘La confiance mutuelle – un élément federal dans l’Union européenne?’ in Penser les droit à partir de l’individu, mélanges en l’honneur d’Elisabeth Zoller (Paris, Dalloz, 2018); for a view from the Strasbourg perspective, J Callewaert, (2018) 55 CMLR, 1685 at 1700 et seq. See, in particular, the case law on the European Arrest Warrant: Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198; Case C-216/18 PPU LM EU:C:2018:586. In this context, see also, as regards the Dublin regulation, the still pending

The Principle of Mutual Trust in the Area of Freedom, Security and Justice  165 trust does not mean ‘blind trust’, and that mutual trust must be ‘earned’ and ‘fostered’.6 The discussion both in the Council and in the European Parliament within recent legislative procedures7 suggest that, currently, the actual level of trust between Member States as regards fundamental rights compliance is not high. This is no doubt influenced by the rule of law problems arising in certain Member States and which have, at the time of writing, triggered an Article 7 TEU procedure as regards two Member States. In this state of affairs, it appears worthwhile to devote more attention on just what it is that can sustain mutual trust between Member States in the Area of Freedom, Security and Justice. What are necessary or at least useful ‘corollaries’ of the mutual trust principle? That in itself is a vast question with many facets. Many activities of the Member States and of the EU institutions can be useful contributions helping, day-to-day, to build up and maintain the actual trust between national authorities in the EU. There is no space here to provide a sensible overview of all of them.8 Instead, in what follows, we will explore three possible corollaries of mutual trust in the Area of Freedom, Security and Justice (AFSJ) that have been mentioned in the scholarly debate of the last years: —— independent judicial authorities; —— common EU standards on criminal procedure and on penitentiary systems; and —— the basic legal structure set up by the EU Treaties, implying mutual trust amongst Member States sharing common values, bound by the Charter of Fundamental Rights and submitted to the jurisdiction of the Court of Justice. While each one of these factors are sometimes simply presented as self-evident hallmarks of mutual recognition and mutual trust in the AFSJ, a closer look will reveal that matters are not quite so simple. Joined Cases C-297/17 and C-318/17, C-319/17 and C-438/17 Ibrahim and others, and AG Wathelet’s Opinion, EU:C:2018:617. In contrast, we do not understand the judgment C-578/16 PPU CK EU:C:2017:127 as marking a limit of the principle of mutual trust; indeed, that judgment concerned a situation in which the transfer of the asylum seeker from the first Member State to the second could, in itself, result in a real risk of inhuman or ­degrading treatment within the meaning of Art 4 of the Charter, irrespective of the quality of the reception and the care available in the second Member State which was responsible for examining his application, see paras 73 and 95 of the judgment. 6 See inter alia L Bay Larsen, ‘Some Reflections on Mutual Recognition in the Area of Freedom, Security and Justice’, in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System, Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012) 139, at 148–49; S Prechal, European Papers (n 3) 85; K Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’ (2017) 54 CMLR 805; E Regan, ‘The role of the principles of mutual trust and mutual recognition in EU law’ Il diritto dell’Unione europea (2018) 213; A Rosas and L Armati, EU Constitutional Law (Oxford, Hart Publishing, 2018) 182. 7 See the ground for refusal, based on fundamental rights violations, in Art 19 (1)(h) of Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of ­freezing orders and confiscation orders, a ground that did not figure in the Commission’s proposal (COM(2016)0819); see also the discussions in the JHA Council meetings of 11 October 2018 and 7 December 2018 on the Commission’s proposal for an ‘e-evidence’ regulation (COM (2018)225), where a number of Member States requested the inclusion of a notification of any European investigative order issued by one Member State directly to a service provider in another Member State also to be notified to the Member State that would need to enforce the order, so as to allow that Member State to perform a fundamental rights check. 8 For a useful list of measures, see, most recently, the Conclusions of the Council of the EU of 7 December 2018 ‘Promoting mutual recognition by enhancing mutual trust’ (doc 15272/18 JAI 1258).

166  Clemens Ladenburger

II.  Independent Judicial Authorities One of the seminal cases decided in 2018 was LM.9 In its judgment of 25 July 2018, the Court clarified the conditions and procedure applicable when the authority of one Member State is called upon to execute a European Arrest Warrant issued by another Member State in which there seem to be systemic or generalised deficiencies so far as concerns the independence of the Member State’s judiciary. The Court acknowledged that such deficiencies may lead to a real risk of a breach of the fundamental right to a fair trial, and that such a risk justifies an exception to mutual trust for the purposes of executing a European Arrest Warrant, just as much as a real risk of inhuman or degrading treatment (Article 4 of the Charter of Fundamental Rights of the European Union (Charter)) did in the Aranyosi case.10 The Court noted that judicial independence forms part of the essence of the fundamental right of a fair trial, and that maintaining the independence of courts and tribunals is essential for ensuring effective judicial protection. The judgment in LM is thus a forceful demonstration – if there was a need for one – that an independent judiciary in each Member State is indeed an indispensable prerequisite for mutual trust between Member States But in that judgment the Court also stressed that, since the EAW Framework Decision established a simplified system of direct surrender between ‘judicial authorities’ for the purpose of ensuring in the AFSJ the free movement of judicial decisions in criminal matters, maintaining the independence of such authorities is also essential in the context of the EAW mechanism, and stated that not only the decision on executing an EAW, but also a decision on issuing such a warrant must be taken by a judicial authority that satisfies – in the Court’s words – ‘the guarantee of independence’.11 Does this obiter dictum12 mean that European Arrest Warrants may only be adopted by independent judicial authorities, and if so, is ‘independent’ to be understood in the same sense as for courts, pursuant to Article 19 TEU?13 Has the Court possibly even established an underlying general principle under which schemes of mutual recognition of judicial decisions on criminal matters (perhaps also on civil matters?), resting on the principle of mutual trust, necessarily presuppose that the issuing judicial authority is independent? In other words, is the independence of the authorities involved on either end of a scheme of mutual trust between two Member States in the area of freedom, security and justice a ­necessary corollary of such mutual trust? The Court is called upon to clarify this question in the new preliminary ruling Case C-508/18 OG. In that case, the Supreme Court of Ireland wonders whether European Arrest Warrants can be issued at all validly by a German prosecutors’ office, given that – as is

9 Case C-216/18 PPU LM EU:C:2018:586. 10 Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198. 11 See points 55 and 56 of the LM judgment. 12 The passage is obiter: what mattered in LM was not whether the Polish EAW was issued by an independent judicial authority (the time of issuance was before the controversial judicial reforms took place in Poland), but whether, in case the person concerned was surrendered to Poland, it would face a real risk of no fair trial due to a possible lack of independence of the trial court. 13 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117.

The Principle of Mutual Trust in the Area of Freedom, Security and Justice  167 the case still in a few other Member States14 – it is not independent from the government and that the Minister of Justice of a German Land may at least theoretically issue instructions, general and even individual ones, to the supreme head of the prosecutor’s office in that Land. Awaiting the outcome of that case, we would voice some doubts whether the independence of a judicial authority is really a necessary prerequisite for its participation in any scheme of cooperation based on mutual trust established under Title V of the TFEU. It should be recalled that the Court started developing its line of cases expressly speaking of a ‘principle of mutual trust’ in the context of the Dublin Regulation forming part of the Common European Asylum System.15 In that system, the Member State actors cooperating with each other are administrative authorities dealing with asylum claims. Those are typically part of the general administration of the State and as such not endowed with independence but instead subject to instructions from the Minister of Interior who is, and should be, accountable to the respective parliament for the proper implementation of Union and national asylum legislation. In the interesting recent Donnellan case,16 concerning a cross-border enforcement of a customs penalty, the Court recalled the fundamental importance of the principle of mutual trust, particularly as regards the area of freedom, security and justice, and then found that Council Directive 2010/24 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures, though outside Title V, was also based on that principle. The Court then transposed to this scheme of recovery of tax claims its case law on mutual recognition and enforcement in civil and commercial matters, organised by the Brussels I regulation. But, just like the asylum administration, the authorities deciding on customs and tax claims and cooperating with each other under the terms of Directive 2010/24 are typically not independent; instead they are part of the general administration submitted to full instructions by the government, in casu the finance ministries. These examples suggest that the independence of the acting authorities is by no means generally a necessary corollary of the principle of mutual trust underlying any scheme of mutual recognition in the AFSJ. Rather, what matters is that any decision or action of one Member State authority (other than a court) that may benefit, under EU legislation in the AFSJ, from mutual trust and hence may normally not be cross-checked by another Member State’s authority for fundamental rights compliance, is amenable to effective judicial review

14 According to the Venice Commission, currently these include Austria, Germany, Denmark and the ­Netherlands; see Venice Commission Opinion 924/2018 of 20 October 2018 on the reform of the judiciary in ­Romania, para 60. It may be added that the recent judicial reforms in Poland have significantly reduced the independence of public prosecutors, by merging the office of the Public Prosecutor-General with that of the Minister of Justice and increasing the powers of the Minister/Public Prosecutor-General Public Prosecutor General in the management of the prosecutorial system. In its reasoned proposal based on Art 7 TEU, the Commission acknowledged that the requirements as regards the independence of public prosecutors were not as categorical as for courts, and therefore mentioned this aspect only as a contributing element in the overall rule of law assessments. Cf COM (2017)835, pts 169–70. 15 See the NS case cited above, in which Allan Rosas acted as rapporteur. Mutual trust or confidence had obviously been referred to earlier in the case law of the AFFSJ, see, eg, Case C-303/05 Advocaten voor de Wereld EU:C:2007:261, para 57; Case C-185/07 Allianz EU:C:2009:69, para 30. It is interesting to note, however, that the Court only started expressly referring to a ‘principle’ of mutual trust when it needed to recognise and shape its exceptions. For a critical voice, see M Nettesheim, EUZ (2018) 4. 16 C-34/17 Donnellan EU:C:2018:282.

168  Clemens Ladenburger by a court. And for such effective judicial review to be provided, the courts of the first Member State must of course be independent. For European Arrest Warrants issued by public prosecutors, this pleads in favour of a prudent approach when it comes to probing into the precise status of the respective prosecutor’s office. The EU legislator, when including prosecutors amongst the “judicial authorities” in various EU instruments on judicial cooperation, was well aware of the great diversity of systems of administration of justice in the EU, and it has refrained from taking any stance as to ministerial dependence versus some degree of independence of prosecutors. ­More­over, already from the hierarchical structure of prosecutors’ offices in many Member States, which in turn is explained by a need to exercise coherently the discretionary powers of accusation, it seems clear that ‘independence’ could not be just the same in the case of prosecutors as it must be for judges. In the case of acts emanating from prosecutors as ‘judicial authorities’, the degree of mutual trust deemed necessary for mutual recognition need not derive exclusively from their administrative status, but may arguably also flow from their ethos as laid down in rules on their mission and as proven by practice, and from the fact that their action is always at some stage subject to control by a court, which of course must be independent. However, one could derive quite another story from the conscious choice made in the EAW Framework Decision, which replaced the former political extradition procedure with an exclusively judicial procedure of surrender, that the issuance of European Arrest Warrants must not be influenced by instructions from the Justice Minister in an individual case, lest the conscious legislative choice to de-politicise the European Arrest Warrant scheme be undermined. In sum, one may argue that while judicial independence is an indispensable corollary of mutual trust in the AFSJ, cooperation exclusively between independent authorities is not. All this is certainly not to suggest that the EU legislator, in building the AFSJ, could not differentiate according to the nature and status of the authorities involved. To the contrary, legislative practice shows that schemes of mutual recognition have largely been limited to judgments and other judicial decisions. We are not aware of any equivalent scheme in the area of police cooperation.17 In the field of civil law, the Brussels I Regulation establishes mutual recognition and enforcement of judgments, and is clear that judgments must be given by a ‘court’ or tribunal. In the Pula Parking judgment the Court has interpreted the notion of ‘court’ in Brussels I as comprising certain requirements, including that of independence.18 Still, that judgment does not foreclose express legislative choices to extend schemes of judicial cooperation in civil matters to actors other than a ‘court’, such as a public notary or even an administrative authority.19 In the Common European Asylum

17 cf, however, two interesting recent Commission proposals: its proposal of 18 April 2018 (COM(2018) 213 final) for a new Directive, based on Art 87 TFEU, which will inter alia require cooperation between Financial Intelligence Units (FIU), as a matter of police cooperation, but which stops short of any mutual recognition of requests from such FIUs (even though Art 32 of Directive 2015/849 requires FIUs to be ‘operationally independent and autonomous’). The second proposal (COM(2018) 640 final of 12 September 2018), for a regulation based on Art 114 TFEU on preventing the dissemination of terrorist content online, goes further into unchartered territory: it would in principle require ‘removal orders’ by national (police) authorities of one Member State to be binding on service providers in other Member States. 18 C-551/15 Pula Parking EU:C:2017:193. 19 See also Art 3(2) of Regulation 650/2012 on successions, with its wide definition of ‘court’ that includes also other authorities while requiring only impartiality but not independence.

The Principle of Mutual Trust in the Area of Freedom, Security and Justice  169 System, administrative acts of one Member State granting or refusing international protection do not need to be recognised by the authorities of another Member State; the same is true for return decisions and the Commission, in its recent recast proposal of the ‘Return’ Directive 2008/115,20 shied away from proposing mutual recognition of such decisions. All this suggests that it is generally easier to accept mutual recognition for decisions emanating from judicial actors than for those of the administration, no doubt because of a higher benefit of trust in the legality, notably fundamental rights conformity, of the former as compared to the latter.21 Similarly, for judicial cooperation in criminal matters such as through the European Arrest Warrant, the EU legislator would be free to define ‘judicial authorities’ in such a way that only authorities benefitting from a given degree of independence are included; an argument for such a course of action, de lege ferenda, could be derived from the serious human rights interference which is implied with a European Arrest Warrant, and which comes on top of the interference caused by a national arrest warrant. But the EU legislator has not done so, and for a reason: not only would the result be a deep intrusion into Member States’ sphere of organisation of criminal justice. What is more, given the intrinsic difference between the prosecutorial function and that of courts, some hierarchical structure of prosecutor’s offices and some nexus to the government may well be justified, and it could become complex to examine, on a case by case basis, whether a given national model satisfies a new European requirement of ‘independence’. That could precisely go against the purpose of swift execution of European Arrest Warrants based on mutual trust. A clearer solution de lege ferenda might then be to provide explicitly that the issuance of a European Arrest Warrant requires prior authorisation by a court.

III.  Common EU Standards on Criminal Procedure and on Penitentiary Systems Common standards in the EU on the procedural rights of individuals, in particular of the suspect, are often presented as a corollary of mutual trust underpinning mutual recognition of criminal law decisions in the AFSJ.22 On a closer look, however, the story is more complex.23 Ever since 1992, when the Maastricht Treaty created the EU’s Third Pillar, Member States have been divided into two competing schools of thought as regards the fundamental approach to be followed in building a European criminal law space: whereas one camp argued that judicial decisions in criminal matters should be afforded far-reaching mutual recognition within the EU, notwithstanding the great diversity of the criminal law systems, the other camp insisted that the EU first needed a body of minimum harmonisation of

20 COM(2018) 634 final. 21 The Court has followed this reasoning, eg, in its judgment in Case C-452/16 PPU Poltorak EU:C:2016:858, para 45 referring to para 25. 22 For a recent example, Regan, ‘The role of the principles of mutual trust and mutual recognition in EU law’ (n 6) 234. See also, Council Conclusions of 7 December 2018, para 2. 23 cf now also the very rich study by E Sellier and A Weyembergh, ‘Criminal Procedural Laws across the European Union’, 2018, www.europarl.europa.eu/RegData/etudes/STUD/2018/604977/IPOL_STU(2018)604977_EN.pdf.

170  Clemens Ladenburger substantive and, more importantly still, procedural criminal law, before mutual recognition of decisions could be envisaged. In the conclusions of the groundbreaking Tampere European Council both schools were brought together, with a certain spin towards mutual recognition.24 Shortly afterwards, in reaction to the terrorist attacks of 11 September 2001 in New York, the EU created the European Arrest Warrant scheme, which still today is the prime instrument of mutual recognition in criminal matters. Some time later the Tampere compromise found its way into the draft Constitution and from there into the Treaty of Lisbon. From the documents of the European Convention of 2002/0325 it becomes quite clear that, in the series of brand-new treaty articles on what would become the AFSJ, both aspects were recognised as important: mutual recognition of judgments in criminal matters had to be enshrined as an objective of the AFSJ and some degree of harmonisation of criminal procedure was deemed necessary to underpin such recognition. Indeed, one may say that in the spirit of the Convention both aspects belonged together. The new explicit EU competence for minimum harmonisation of certain aspects of criminal procedure, including procedural rights of individuals and victims’ rights, was justified as a means of strengthening mutual trust and hence as a corollary of mutual recognition of criminal judgments and pre-trial decisions.26 How does it fit with this logic then that the Lisbon Treaty also granted two Member States, Ireland and the UK, an unconditional opt-in regime à la carte in this area (see Protocol 21)? How is it possible that these two Member States may choose to be part of far-reaching schemes of mutual recognition of judgments and pre-trial decisions in criminal law, yet at the same time stay outside the various directives on approximation of criminal procedure adopted since the Lisbon Treaty?27 The explanation is as banal as 24 See para 33 of the conclusions of the European Council of October 1999: ‘Enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union.’ See also paras 35 and 36, sketching out future schemes of mutual recognition which would later be translated into the EAW and the EIO, followed by para 37, calling for work on ‘those aspects of procedural law on which common minimum standards are considered necessary in order to facilitate the application of the principle of mutual recognition, respecting the fundamental legal principles of Member States.’ 25 See Final Report of Working Group 10 of the Convention, CONV 426/02 of 2 December 2002, p 8: ‘The new formulation of these legal bases must reflect the right balance between the principle of mutual recognition and efforts to approximate criminal laws: as it was politically agreed in Tampere, the principle of mutual recognition should be the cornerstone of judicial co-operation, allowing judicial decisions of one Member States to be recognised by the authorities of another Member State. The Group recommends that this principle of mutual recognition of judicial decisions should be formally enshrined in the Treaty. The Group also recognises that some approximation of certain elements of criminal procedure and of specific areas of substantive criminal law, respecting the different European legal traditions – as well as the provisions of the ECHR as reflected in the Charter in particular concerning the presumption of innocence – may prove necessary in order to facilitate mutual recognition.’ 26 See Final Report of Working Group 10 of the Convention, CONV 426/02 of 2 December 2002, p 11 under ‘b) Approximation of elements of criminal procedure’: ‘The experts have demonstrated that the need for approximation of certain elements of criminal procedure is widely recognised by practitioners and perhaps more urgent than approximation of substantive criminal law. The Group recognises that such procedural approximation both facilitates the collaboration between law-enforcement agencies of the Member States (and the Union bodies acting in the field), and the application of the principle of mutual recognition, as it strengthens mutual confidence. At present, Article 31 TEU does not reflect sufficiently this point and is too vague on concrete possibilities for such approximation.’ 27 Note that Ireland is bound by only two ‘procedural rights’ directives out of six, namely the Translation and Interpretation Directive and the Information Rights Directive.

The Principle of Mutual Trust in the Area of Freedom, Security and Justice  171 it is unsatisfactory:28 while the UK and Ireland were not meant to have an opt out in the area of criminal law when in 2002/03 the European Convention, and in 2004 the first Intergovernmental Conference, agreed on the package making up the new Articles on the area of Freedom, Security and Justice, they secured their opt-out rights in precisely those areas in 2007, in the very short negotiations leading to the June 2007 European Council which pre-decided the Lisbon Treaty. In those special circumstances there was no time for the actors to wonder about the consequences of breaking the link between procedural harmonisation and mutual recognition. In practical terms, however, the problem caused by this broken logic in EU primary law should not be overstated. True, of 28 Member States there are two – or three, in the special case of the European Arrest Warrant in which Denmark participates, as it was adopted pre-Lisbon – which may claim mutual trust from the others as a basis for recognition of their criminal sentences and pre-trial orders although they are not bound by all directives on minimum standards of criminal procedure. But even those Member States are of course bound by Article 6 of the ECHR. Next, with Brexit, the problem will diminish in practice (see also the next section). What is more, when looking at the substance of the criminal procedure directives, they tend to spell out in greater detail the ECHR guarantees and codify ECHR case law rather than to add entirely new guarantees.29 Arguably, their added value is in good part that they bring within the scope of application of EU law (also for the purposes of Article 51 of the Charter) the respective basic guarantees of criminal procedure. This will allow the Commission to bring infringement procedures in case of serious deficiencies in the legislation or practice of a Member State that would risk undermining the mutual trust necessary for schemes such as the European Arrest Warrant to function, whereas before those guarantees lay ouside EU law and were only subject to the weaker enforcement system of the ECHR. Admittedly, this enforcement power, which the Commission only has since December 2014, would not be at its disposal should systemic problems arise in criminal procedure in Ireland or Denmark. If ever such problems were to emerge in an area covered by a Directive in which a Member State does not participate, the EU legislator could still react by adapting schemes of mutual recognition. Besides guarantees in criminal procedure, minimum standards as regards humane prison conditions is the other aspect of fundamental rights observance which has proven key to ‘earning’ the degree of mutual trust needed for the European Arrest Warrant and other EU schemes of criminal law cooperation to function effectively. Arguably, in practice it has become the single most important obstacle to mutual trust in this area. A German referring court recently informed the Court of Justice that, in 2017 alone, 77 European Arrest Warrants from Romania were rejected by German authorities on this ground.30 There had been some discussion in the 2002/03 Convention and its Working Group X on whether one should also include, in the new treaty, some legislative power on setting minimum conditions for the Member States’ penitentiary systems. But, unlike for criminal procedure, on this point the intrusion into the realm of national sovereignty was felt too significant. In any

28 Critical also E Sellier and A Weyembergh (n 23) 182. 29 See, eg, Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. 30 Order for reference in the pending Case C-128/18 Dorobantu.

172  Clemens Ladenburger event, the Strasbourg Court’s case law on Article 3 ECHR is relatively precise as regards the requirements that humane prisons must fulfil, and the Court of Justice follows it closely. The result of the Convention’s choice not to address prison conditions is, at least, uncertainty whether the matter could at all be brought within the scope of EU law31 for the purposes of Article 51 of the Charter, so that faced with deficiencies in Member States even so widespread as annihilating the European Arrest Warrant scheme, the legislator could adopt minimum rules and, consequently, the Commission could react through infringement proceedings. At least, Article 70 TFEU would arguably allow setting up a mutual evaluation system on prison conditions. EU funding programmes covering this area could also be considered still to come under the EU’s competence granted by Article 82 TFEU.32

IV.  The Very Legal Structure of the EU, Implying and Justifying Mutual Trust In Opinion 2/13,33 the Court of Justice stressed that the very legal structure of the EU is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.

The Court went on to underline that ‘also at the heart of that legal structure are the fundamental rights recognised by the Charter’ and to highlight the EU’s judicial system composed of the national courts and tribunals and of the Court itself, tasked to ensure the full application of EU law and judicial protection of individual rights under that law, with the preliminary ruling procedure as its keystone. Further on in the same Opinion, the Court noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, particularly with regard to the AFSJ. Given these solemn statements, one may be led to conclude that a strong corollary of mutual trust is the very fact of being members of a special club, where such mutual trust is presumed and required. Those special legal relations in the AFSJ based on mutual trust exist, so it could be thought, specifically and exclusively among EU Member States, since they all share the same values of Article 2 TEU, that they are all bound by the Charter when implementing EU law, and all submit to the jurisdiction of the Court. 31 It is open to debate whether one could include the penitentiary systems within the concept of ‘criminal procedure’ Art 82(2)(b) TFEU or at least in the special ‘passerelle’ clause of Art 82(2)(d) TFEU. 32 Note that the new Commission proposal for the next Justice programme (COM (2018) 384) explicitly includes prison staff amongst ‘Judiciary and judicial staff ’ that can benefit from the Justice Programme, and that already the annual programmes under the current Justice Programme have included some, albeit limited, action in prisons (ec.europa.eu/info/law/better-regulation/initiatives/com-2018-384_en). It is remarkable that the Council Conclusions of 7 December 2018, at point 24, invite the Commission ‘to promote making optimal use of the funds under the EU financial programmes, in case they are made available, in order to strengthen and promote judicial cooperation between the Member States, including in order to modernise detention facilities in the Member States and support the Member States to address the problem of deficient detention conditions, as this can be detrimental to the application of the mutual recognition instruments.’ 33 See Opinion 2/13, EU:C:2014:2454, paras 168 et seq.

The Principle of Mutual Trust in the Area of Freedom, Security and Justice  173 And yet, banal as all this may at first seem, there are some open questions on just how far the normative force of the Court’s statements in Opinion 2/13 may lead us. These questions arise with regard to international agreements, existing and future, by which the EU extends to third countries legal instruments of the AFSJ. Are there legal limits to such agreements making applicable key components of the AFSJ based on the principle of mutual trust, to third countries? Is it a problem that such third countries, even though parties to the ECHR and presumably also attached to the values enshrined in Article 2 TEU, are not legally bound by the Charter nor submitted to the jurisdiction of the Court? The main existing example is the association agreements which extend the entire ­Schengen acquis, as well as the Dublin and Eurodac Regulations, to Norway and Iceland and to Switzerland and Liechtenstein. They do so even on a dynamic basis: every future EU secondary act building on the Schengen acquis, and every future amendment to the Dublin and Eurodac regulation, must be incorporated into the respective agreement, or else the whole agreement will lapse under a guillotine clause.34 The effect of these agreements is that the four associated states are treated just like Member States for all purposes under the – very substantial – parts of current and future EU secondary law of the AFSJ covered. Yet the courts of those states cannot make preliminary references to the Court of Justice, and the association agreements contain but a political dispute settlement mechanism. In case the authorities or courts of those states started disregarding, even in a serious manner, the fundamental rights recognised by the Charter when, eg, operating or receiving Dublin transfers of asylum-seekers to or from Member States or when processing data contained in SIS-alerts, EU citizens and other individuals would still continue to be exposed to the operation of those EU acts based on mutual trust until the respective agreement is terminated. The dispute settlement clauses do, however, foresee an automatism towards termination in case a substantial divergence between authorities or courts of either side in application or interpretation of the acquis covered and the Mixed Committee fails to ensure a consistent application and interpretation within given deadlines.35 The underlying rationale of these quite far-reaching associations is the extension of the Schengen area to the four countries, an extension which appeared imperative for historical and geographical reasons. This rationale is so strong that, we would submit, despite the sweeping statements made in Opinion 2/13 one cannot assume that the Council exceeded its margin of discretion or violated a fundamental principle of EU constitutional law when it agreed to extend large chunks of AFSJ law based on mutual trust to those four countries, even though the Charter does not apply there and the Court of Justice lacks jurisdiction. In any event, the four countries are also bound by the ECHR, and their historic track record of commitment to and observance of the ECHR is impeccable. What is more, a preliminary ruling case pending in the Court of Justice suggests that, at least in certain configurations, the authorities and courts of those associated states, when applying EU secondary law of the AFSJ, are also bound to respect the Charter as such.36 As the same pending case

34 For such a clause, see, eg, Art 7 para 4 of the EU-Switzerland Schengen Association Agreement, [2008] OJ L52/53. 35 See, eg, Arts 9 and 10 of the EU-Switzerland Schengen Association Agreement. 36 See pending Case C-680/17 Vethanayagam. This case concerns the Visa Code (Regulation 810/2009), a development of the Schengen acquis, and how to ensure effective judicial protection in a situation of ‘representation arrangements’ pursuant to Art 8 of the Visa Code, whereby one Member State may, in a third country, represent

174  Clemens Ladenburger also ­illustrates, though, a court of an associated state, even though it ‘steps in the shoes’ of a Member State court in application of EU secondary law,37 could not make a preliminary reference to the Court – a somewhat precarious situation. Should there ever be a systemic problem in one of the four associated states so that the necessary trust in its fundamental rights observance is lastingly undermined, then the EU side, ie the Commission and the Council, may well be under concrete legal obligations, deriving from the fundamental principles recalled in Opinion 2/13, to take the road towards either dispute resolution or automatic termination that is paved in the dispute settlement provisions cited above. Brexit will pose afresh – and with more acuity – the question where the legal limits may lie for extending schemes of mutual trust developed in the AFSJ to a third country. The talks so far held between the EU and the UK on the envisaged framework for the future relationship, which crystallised in a joint political declaration of November 2018 accompanying the draft withdrawal agreement proper, already reveal that both sides aim for an ambitious internal security partnership.38 In this context, the UK side has been proposing a law enforcement cooperation with the EU under which, essentially, the UK would continue to participate to the greatest extent possible in the current EU acquis on internal security to which it has so far participated as a Member State (ie, selectively, to those parts of the present EU acquis that have applied to the UK after it exercised, in 2014, its special ‘block opt-out and back opt-in’ rights foreseen by Article 10 of Protocol 36 to the Lisbon Treaty). It has, in particular, signalled its wish to stay connected to the EU’s law enforcement data bases such as SIS II and Europol’s, to continue participating in other schemes of exchange of operational data such as PNR, ECRIS and Prüm, and to agree with the EU on extradition and mutual recognition schemes as close as possible to the European Arrest Warrant and the European Investigative Order. Could the EU, under its own constitutional law as summarised in Opinion 2/13, really agree all this with the UK, a third country not bound by the Charter and not submitted to

another Member State for the purposes of examining visa applications and issuing visas on behalf of that other Member State. It so happens that the concrete case concerned a representation arrangement concluded between the Netherlands and Switzerland, and a refusal to issue a Schengen visa by the Swiss embassy in Sri Lanka on behalf of the Netherlands. Since Swiss authorities apply the Visa Code like Member State authorities, it appears logical that the legal questions referred to the Court do not touch on the circumstance that the act against which judicial protection is sought was a Swiss embassy rather than that of a Member State. In giving its reply to the question which courts should be competent for reviewing the refusal of the visa – those of the acting Member State or those of the represented Member State – the Court should arguably consider the case just as if it played between two Member States. But this does imply that Switzerland is bound, in this configuration, by the standards of Art 47 of the Charter (not only by Art 13 ECHR) in the same was as any Member State applying the Visa Code. 37 In case the Visa Code is to be interpreted as meaning that both the administrative and the judicial competence for deciding on visa applications lies with the representing Member State, it would follow that the Swiss embassy acts on behalf of the Netherlands and that Swiss courts would alone be competent for judicial review of this act of implementation of the Visa Code. The mere fact that Swiss courts cannot make a preliminary reference to the Court can hardly alter that result, lest the whole operation of the Visa Code by the Schengen associated countries – and by extension, that of many other parts of the Schengen acquis and of the Dublin regulation – be profoundly undermined. 38 See paras 82–91 of the joint political declaration of November 2018 (consilium.europa.eu/media/ 37059/20181121-cover-political-declaration.pdf). For more details on this and on the following considerations, see C Ladenburger, ‘Selected legal issues arising in the Brexit negotiations, in particular concerning the protection of citizen’s rights and the area of freedom, security and justice’ (2019, forthcoming) European Review of Public Law. At the time of writing, parliamentary approval on the draft withdrawal agreement of November 2018, complemented by the political declaration discussed here, is still outstanding both in the UK and in the EU.

The Principle of Mutual Trust in the Area of Freedom, Security and Justice  175 judicial control by the Court of Justice as regards the acts of its authorities and courts? The EU side uttered its doubts, based on a mix of political and legal considerations.39 The special justification provided by the need to extend the Schengen area, which underlies and structures the association agreements with Norway and Iceland, Switzerland and Liechtenstein, will be absent there. That crucial difference may in itself already present an obstacle, eg, to full access to the SIS II database, legally40 or at least politically. Another difference with the four associates is that there were, not long ago, strong calls in an important part of the UK’s political spectrum for leaving the ECHR or at least undoing its domestic incorporation. The EU stressed the need for strong safeguards of fundamental rights protection in any future EU-UK internal security agreement. The stronger these will be, the more leeway one may assume primary law to leave for such an agreement to cover EU instruments even though they had been developed within the EU as based on mutual trust between Member States. In particular, the EU suggested a safeguard ensuring both the UK’s continued adherence to the ECHR and the actual implementation of the ECHR in the UK’s domestic legal order. That request seems to be vindicated by the Court’s recent judgment in the RO case:41 the Court ruled that the UK’s notification under Article 50 TEU alone was not a circumstance preventing execution in Ireland of a British European Arrest Warrant, and it took comfort inter alia in the circumstance that the UK is a party to the ECHR and has incorporated Article 3 ECHR into its domestic law, and that this would not change after Brexit. Secondly, the EU side has called for a valid ‘adequacy decision’, issued by the Commission under the EU’s data protection framework and attesting that the UK’s data protection laws provide equivalent protection, as a basis for any future internal security agreement with the UK. Thirdly, the EU has made clear that, on its part, the margin to include ambitious schemes on exchange of law enforcement data and on extradition significantly increases if any future EU-UK agreement were to include a strong, quasi-judicial dispute settlement (rather than a purely political one) which would also respect the autonomy of EU law and the role of the Court of Justice. That would imply a preliminary ruling procedure from any arbitral panel established under the agreement to the Court of Justice, to be triggered whenever the panel would need to interpret a provision stemming from or identical in substance to EU law. In Part III of the EU-UK joint political declaration setting out the framework for their future relationship, devoted to ‘security partnership’, the two sides entered into some concrete commitments on certain data exchange and on other items such as surrender of suspected and convicted persons, as well as on the safeguards mentioned above.42 On other matters Part III of the declaration is more openly formulated: the parties ‘should consider further arrangements’ ‘insofar as technically and legally possible’.43 The detailed negotiations on a future agreement in this area promise becoming intense. Needless to say, the

39 See a presentation from the Commission’s Task Force to Member States, published on 18 June 2018 on the Commission’s website (ec.europa.eu/commission/brexit-negotiations/negotiating-documents-article-50negotiations-united-kingdom_en); see also C Ladenburger (n 38). 40 Given the Court's strong emphasis on the integrity of the Schengen acquis, see Case C-482/08 UK v Council EU:C:2010:631. 41 Case C-327/18 PPU, EU:C:2018:733. 42 See points 83, 86, 89 of the political declaration. 43 See points 87 and 90 of the political declaration.

176  Clemens Ladenburger result will have a huge impact on efficiency of law enforcement and on fundamental rights protection in Europe. As any draft agreement in this area may well be submitted to the Court for an opinion pursuant to Article 218(11) TFEU, the Court could then have a good occasion to clarify to which extent and under which conditions those schemes of cooperation existing in the AFSJ that are based on the principle of mutual trust among the Member States may be extended to the EU’s relations with a third state.

V.  Concluding Remarks Recent years have shown how demanding it is to build an area of freedom, security and justice based on mutual trust between EU Member States in their respect of fundamental rights. Such mutual trust cannot be blind and it cannot be taken for granted between Member States without further ado. No doubt it takes manifold activities to earn and sustain such mutual trust; these could not all be dealt with in this chapter. One of the contributions EU lawyers can make, both within the institutions and in academia, is to engage in a more in-depth reflection on which are legal corollaries of mutual trust that must, or should, be required by the Court of Justice and by the EU’s political institutions as they develop legislative instruments of the AFSJ within the Union and as they consider extending substantial parts of such instruments beyond the Union’s boundaries. Probing in three directions, we have seen that matters are not so simple as they sometimes may appear at first sight. While independence of the judiciary in all Member States is an indispensable basis of mutual trust, it does not follow that AFSJ instruments necessarily presuppose interaction between independent authorities; the legislator rather needs to consider on a case-by-case basis which qualities and functions of the national authorities involved may induce which level of trust. In criminal law, instruments of mutual recognition of judicial decisions would certainly benefit from common EU rules and standards on criminal procedure, notably procedural rights of suspects and other persons, and on humane prison conditions; but the EU’s primary law framework may pose certain limits to developing this part of the AFSJ with full coherence. Finally, given the constitutional emphasis the Court placed on the principle of mutual trust as part of the fundamental legal structure of the EU, the institutions need to analyse what safeguards may be needed and what legal limits may apply when the EU expands the AFSJ in part to third countries. There is still much scope for a continued debate on mutual trust and its corollaries, a debate which owes so much to Allan Rosas’ c­ ontributions as a scholar and from the bench.

12 Allan’s Legal Battles before the Court, Acting as the Commission’s Agent JEAN-LOUIS DEWOST*

I have a ‘special relationship’ with Allan Rosas. Firstly, he is a good friend of mine, as, I guess, is the case with most, if not all, of the contributors of this compilation of essays. But, our relationship is also special for a more specific reason: we worked together during six years at the Legal Service of the European Commission. When I left the service, Allan was Deputy Director General of that service and therefore he was naturally entrusted with ­overseeing the interim period after my departure. Like most heads of legal teams at the Commission (Allan was head of the ‘External relations’ team), Allan was mainly occupied with advisory tasks and supervising his collaborators when they would be appointed to represent the institution as agents before the Court of Justice of the European Union (CJEU). Nevertheless, considering his competence in the field of public international law, as well as in languages, Allan also represented himself the Commission in Luxembourg on six occasions between the years 1998 and 2002. Of course, intellectually, the whole Legal Service was involved in the work. Once Allan had proposed a ‘line’ to follow, the arguments were discussed with the other team leaders, as well as with Christiaan Timmermans, and were finally decided upon by the Director General. In the following, although I will not comment in detail on these six cases in which Allan acted as the Commission’s agent, I will try to show how he defended with zeal and conviction the legal interests entrusted to him and, furthermore, how he fought – and mostly won – these battles. The cases I will talk about may be divided in three different categories. First of all, there are three preliminary rulings. Next, there is one direct action and the ensuing appeal. And finally, the most prominent and, at the same time, the most ‘political’ of them all: the infringement procedure against eight Member States which had signed bilateral air ­transport agreements with the United States, known as the ‘Open Skies’ Agreements.

* I would like to express my deep thanks to the team of Judge Bonichot who was kind enough to gather the necessary material for my writings.

178  Jean-Louis Dewost

I.  Preliminary References A. The Outokumpu Oy Case This case is an interesting ‘preliminary ruling’ concerning a certain part of the Finnish customs legislation.1 Outokumpu, a Finnish company, was importing electricity from Sweden and, as such, was considered liable to pay an electricity tax according to the Finnish legislation. The company argued before the competent judge that this tax was a charge having equivalent effect to a customs duty prohibited by Articles 9 and 12 of the EC Treaty. The company also added that the tax should be considered as discriminatory under Article 95 of that Treaty. As a matter of fact, there were three different rates of taxation in Finland, depending on the source of production: water, fuel, nuclear etc. However, in the field of imported electricity, there was only one rate, which was higher than the lowest internal rate. In this case, everyone (except Outokumpu) agreed before the Court of Justice (Court) that the tax was not a customs duty, but an internal tax. However, the Commission (through Allan’s voice) thought that the tax was compatible with Article 95 EC because it was impossible to differentiate between the different sources of imported electricity. Moreover, the Commission argued that the different internal tax rates favoured electricity coming from ‘green sources’. Advocate General Jacobs was convinced by this demonstration … but the Court was not. At the end of the day, Allan lost, but the honour was saved!

B. The Kainuun Liikenne Oy Case This reference for a preliminary ruling concerned a subject which continues to be controversial even today: the proper balance between public service obligations and fair competition.2 The Supreme Administrative Court of Finland referred to the Court questions concerning the 1969 Council regulation on public service obligations and the obligations arising out of the concept of public service in rail, road and inland waterway transport. A bus company, which had been granted a transport passenger licence for a given route, applied for its partial termination, unless the undertaking was granted financial compensation for the section of this route which was not economically profitable. Everyone (the Commission, Advocate General Philippe Léger and the Court) agreed that there was no obligation for a Member State to grant an undertaking entrusted with a public service mission a partial termination of its public service obligation even if the economic disadvantage is obvious. But a disagreement appeared concerning the question of how to interpret the regulation regarding the concept of ‘provision of adequate transport services’. According to Advocate General Léger, this concept had to be assessed by keeping in mind the public interest, the possibility of having recourse to other forms of transport and their adequacy to the needs of the public, the rates etc. In this particular matter, Member States have a ‘wide margin of appreciation’ according to Philippe Léger (and, it seems, the Commission).

1 Case 2 Case

C-213/96 Outokumpu Oy EU:C:1998:155. C-412/96 Kainuun liikenne Oy and Oy Pohjolan Liikenne Ab EU:C:1998:415.

Allan’s Legal Battles before the Court, Acting as the Commission’s Agent  179 Nevertheless, less sensitive to the necessities of public service, the Court decided that ‘where there are several ways of providing adequate transport services, the competent national authority is to select the way least costly to the community’.

C. The Jägerskiöld v Gustafsson Case This case is the last of the three preliminary rulings.3 The factual background was odd but the legal questions involved were very interesting. Allan, according to the conclusions of Advocate General Fennelly, had an important role in enlightening the Court about them. The case arose from a dispute between Mr Jägerskiöld, owner of waters, and Mr Gustafsson who fished in these waters without his permission, but with a state licence for angling. This system resulted from a 1996 law creating a state licensing system in order to promote, among other goals, fishing tourism. The applicant, before the district court, claimed that the 1996 law infringed the EC rules on the freedom of movement of goods, and alternatively the rules on the freedom to provide services. The defendant did not address the question of EC law being violated. Two questions were at stake. Is such a request for a preliminary ruling admissible? If yes, are free movements of goods and/or services involved? The Commission, through Allan’s writings, took the view that the request was inadmissible because there was no real legal dispute. Advocate General Nial Fennelly shared, at first, the Commission’s doubts based on the two Foglia v Novello cases, but ultimately found the evidence of an artificial dispute insufficient. The Court decided accordingly. Allan was not ‘followed’ on the issue of admissibility, but he succeeded, in return, to convince both the Advocate General and the Court itself on the substantive question. Although fishing may ultimately result in the capture of fish, which are goods, this was not sufficient to bring the 1996 Finnish law regulating fishing licences within the scope of free movement of goods. Regarding the freedom of services, the decisive argument was that the case was related to a right which could only be exercised in Finland. Only a tourist purchasing a fishing licence in another Member State could be considered a recipient of a cross-border service, but that was not the case of Mr Gustafsson.

II.  Direct Action: The Two Dorsch Consult Cases These cases were less technical but more ‘political’ because of their background.4 In fact, the Commission’s liability was at stake because of its conduct in the field of international law. Dorsch Consult, a German company operating in the field of engineering consultancy, made a contract with Iraqi authorities in 1975. In 1990, the EC decided to follow the United Nations (UN) Security Council resolution reacting to the invasion of Kuwait by declaring an embargo on Iraq – which had massive debts. Not having received payment from the Iraqi authorities of sums it was owed, Dorsch Consult requested the EC Council

3 Case C-97-98 Peter Jägerskiöld v Torolf Gustafsson EU:C:1999:515. 4 Case T-184/95 Dorsch Consult v Council and Commission EU:T:1998:74; Case C-237/98 P Dorsch Consult v Council and Commission EU:C:2000:321.

180  Jean-Louis Dewost and the Commission to compensate for the damage suffered. The request was rejected and Dorsch Consult brought, first, an action in responsibility before the Court of First Instance (CFI) and, then, an appeal before the Court. Even if the two institutions were on the same side as ‘defendants’, they adopted different strategies. On the one hand, the Council argued that the claim was inadmissible. The Commission, on the other hand, argued, through Allan’s voice, that Articles 178 and 215 of the EC Treaty did not allow for claiming from the EC damages based on non-contractual liability for the adoption of a lawful act. Nevertheless, Allan cleverly added that ‘there must be a legal basis in the Treaty on which an individual may rely to establish liability on the part of the Community for a lawful act’. Thus, he opened the way to an interesting reasoning of the CFI, summed up by the Court on appeal: the Community can incur non-contractual liability in respect of lawful acts … only if three cumulative conditions are satisfied, namely that the alleged damage was actually suffered; that there is a causal link between the damage and the acts of the Community institutions; and that the alleged damage was unusual and special.5

By looking closely into the facts and with the useful assistance of the two EU institutions, the CFI judged that the company had not established that it had suffered actual and certain damage. On appeal, the Court, following the approach set out by Advocate General Antonio La Pergola in his opinion, refused to enter into a discussion about questions of proof, by considering that no error of law was made by the CFI in its reasoning.

III.  Infringement Actions: The ‘Open Skies’ Cases The last case is part of a series of eight actions of the Commission against eight Member States, including Finland, in the so-called: ‘Open skies’ cases.6 This time, Allan was a member of a team of lawyers and his pleadings were rooted in a litigation strategy decided at a political level. Nevertheless, he took part in the formulation of the legal arguments supporting the political action. In a nutshell, this case was the outcome of a long-lasting struggle between Member States and the Commission about the delimitation of competences in the field of air transport. The Commission argued that eight Member States, which in 1995 had renewed the old bilateral agreements they had passed in this field with the US in the 1950s, had violated the EC Treaty. The arguments were based, on one hand, on Opinion 1/76 and, on the other, on the ERTA judgment. The Court, following its Advocate General, Antonio Tizzano, dismissed the Commission’s arguments on the ground of Opinion 1/76, but accepted the demonstration of Allan and his colleagues based on the ERTA doctrine. As the different parts of the bilateral agreements were closely linked with EC sectoral regulations (especially in the fields of fares and rates, computer reservation systems, ownership and control of air companies etc), the Court’s judgment played the role of a detector



5 Case 6 Case

C-237/98 P Dorsch Consult v Council and Commission EU:C:2000:321, para 53. C-469/98 Commission v Finland EU:C:2002:627.

Allan’s Legal Battles before the Court, Acting as the Commission’s Agent  181 of an unsatisfactory situation. Years later and after some rearguard battles, an EU-US ­agreement on ‘Open Skies’ emerged in a two-phase process (in 2007 and 2010). One could say, without exaggerating, that Allan and his fellow agents paved the way to this satisfactory final solution. 

Even if the reader of this contribution may feel that the preceding commentaries fly over the subject matter, I do hope it has shed some light on the fact that before developing his brilliant career as a judge at the Court, Allan made a substantial contribution to the legal pleadings of the Commission and, what is more, to the development of Community law.

182

part iii Rights of the Individual in Times of Change

184

13 Balancing Security Reasons and the Adversarial Principle The New Article 105 of the Rules of Procedure of the General Court MARC JAEGER

I. Introduction The new Rules of Procedure of the General Court (RPGC)1 contain an article regulating the ‘Treatment of information or material pertaining to the security of the EU or that of one or more of its Member States or to the conduct of their international relations’. Although the scope of application of Article 105 of the RPGC is not limited to a specific matter, the debate that led to its adoption has its origins in the case law concerning the lawfulness of restrictive measures adopted by the European Union, with the aim of pursuing the objectives of the External Action of the Union, either autonomously, or by implementing an act of the United Nations Security Council. This case law is relatively recent. It emerged after Common Positions 2001/930/CFSP on combating terrorism and 2001/931/CFSP on the application of specific measures to combat terrorism2 were adopted by the Council in order to implement UN Security Council resolution 1373 (2001), laying down strategies to combat terrorism by all means, in particular the financing thereof.3 Since then, several regimes of restrictive measures have been adopted with a view to fighting, for example, international terrorism, nuclear proliferation, the violation of human rights or the rule of law, the misappropriation of public funds, failure to respect territorial integrity, and migrant smuggling.4 The number

1 [2015] OJ L105/1. 2 [2001] OJ L344/90 and [2001] OJ L344/93. 3 Security Council resolution 1373 (2001) on threats to international peace and security caused by terrorist acts, S/RES/1373 (2001). 4 Restrictive measures include various restrictions that the European Union may impose on third states, legal or natural persons or other groups or non-state entities. They fall under the External Action of the European Union and are adopted by the Council in view of a particular geopolitical situation. Restrictive measures can be divided into two major categories: general measures, which apply erga omnes: for example, embargoes on the export or import of weapons or other products, prior authorisation schemes for the export of dual-use items, prohibition to provide certain services; restrictions on transfers of financial resources between the EU and the third state

186  Marc Jaeger of applications challenging the lawfulness of restricted measures has fluctuated considerably until today, with a sharp increase between 2011 and 2014 due, first, to the fact that Article 275 TFEU grants a right of action to private persons against individual restrictive measures and, second, to the increase of individual measures adopted by the Council independently of the UN Security Council, on the basis of Articles 29 TEU and 215 TFEU.5 The number of such disputes that could be brought before the EU courts in the future may be hard to foresee, being largely dependent on choices made under the Common Foreign and Security Policy and, ultimately, on the global political scenario. The scope and extent of judicial control over the legality of restrictive measures raised several concerns, on the one hand, because of the implications of such review for the definition of relations between the EU and the international legal order and, on the other, because of the need to reconcile the compelling interests pursued by EU authorities with the procedural rights of the individuals, groups or other entities targeted by the measures.6 As it has been remarked, ‘It is true that that case law has caused some consternation and concern among the Council and the Commission and some Member States fearing that this judicial control would undermine the efficiency of EU sanctions. However, experience demonstrates that the [EU] courts are not unaware of the security and political aspects involved.’7 The early jurisprudence in this field focused on the procedural rights of the targeted persons.8 In their more recent jurisprudence, the EU courts have increasingly pronounced on the well‑foundedness of restrictive measures. This second generation of cases posed major challenges, especially with regard to the appraisal of evidence. In fact, in view of the adoption of restrictive measures, particularly but not exclusively counter-terrorism measures, EU authorities often relied on confidential information and documents which, because of their sensitive nature in relation to public security, were not disclosed to the targeted persons neither as they were adopted nor during the proceedings before the EU courts. This not only clearly contravened the rights of the defence and one of their most important corollaries, namely, the adversarial principle; it also prevented an effective judicial control over the soundness of the reasons underpinning restrictive measures. An effective judicial concerned; and individual measures, which apply only to persons, groups or entities specifically designated for this purpose: for example, the freezing of funds and financial resources located within the territory of the EU or held by EU citizens, as well as restrictions on the admission of the natural persons concerned to the territory of the Member States. Although, initially, individual measures were predominantly counterterrorist measures implementing decisions by the UN Security Council, they have later become a widely used instrument of the Common Foreign and Security Policy also in other contexts and independently on UN sanctions. 5 Whilst in 2007 11 actions for the annulment of decisions on restrictive measures were brought before the General Court, 93 such cases were lodged in 2011, 68 in 2014 and 27 in 2017 (see CJEU, Annual Reports for the years 2007, 2011, 2014 and 2017, Luxembourg). 6 The need to strike an appropriate balance between the principle of an effective remedy and national security is certainly not new for the EU judicature. See eg Case 222/84 Johnston EU:C:1986:206, para 60. 7 A Rosas, ‘EU Restrictive Measures against Third States: Value Imperialism, Futile Gesture Politics or Extravaganza of Judicial Control?’ (2016) 4 Il diritto dell’Unione europea 637, 649. 8 See eg Case T‑306/01 Yusuf and Al Barakaat International Foundation v Council and Commission, EU:T:2005:331; Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461; and Case T‑284/08 People’s Mojahedin Organization of Iran v Council EU:T:2008:550. See also, as examples, Cases C‑417/11 P Council v Bamba EU:C:2012:718; T‑390/08 Bank Melli Iran v Council EU:T:2009:401; T‑494/10 Bank Saderat Iran v Council EU:T:2013:59; T‑256/11 Ezz and Others v Council EU:T:2014:93; T‑563/12 Central Bank of Iran v Council EU:T:2015:187; T‑346/14 Yanukovych v Council EU:T:2016:497; T‑731/15 Klyuyev v Council EU:T:2018:90, and Joined Cases T‑533/15 and T‑264/16 Kim and Others v Council and Commission EU:T:2018:138.

Balancing Security Reasons and the Adversarial Principle  187 review presupposes access to the factual elements supporting a decision, not only by the judge but also by the applicant targeted by the restrictive measure; the knowledge of those elements is, in fact, the condition for a genuine adversarial debate. Hence, a number of decisions imposing restrictive measures were annulled because of non-disclosure of the supporting evidence.9 In the past 10 years, some disputes brought before the EU judicature have provided a unique opportunity to clarify the scope of judicial review with regard to the well‑foundedness of restrictive measures, including the appraisal of evidence. On the basis of this case law, within the process of adoption of the new RPGC, the EU judiciary proposed to introduce a new procedural technique for the appraisal of evidence, the disclosure of which would cause a serious security threat; a technique aimed at finding a new, well-balanced arrangement ensuring protection of procedural rights even in this exceptional, but already concretised, scenario. This contribution aims at shedding some light on the concerns that lay behind the adoption of Article 105 of the RPGC, on the safeguards foreseen to counterbalance the – although limited – restriction of the adversarial principle introduced, and on the possible future of this debated provision.

II.  A Need for a Special Procedural Framework Only two very restricted limitations to the adversarial principle existed in the former Rules of Procedure of the General Court, under its Article 67. The first concerned the possible non-disclosure of documents of the case to an intervener. The second pertained to cases where a document to which access has been denied by an institution has been produced before the General Court in proceedings relating to the legality of that denial; in that case, that document would not be communicated to the other parties. Although an explicit assertion of the adversarial principle was not included in the RPGC until 2015, this principle is among the most consolidated of those underpinning the EU judicature.10 Indeed, as a direct corollary of the right to an effective remedy and of the rights of the defence, the adversarial principle ranks among the most relevant judicial safeguards of the rule of law and, ultimately, of democracy. The importance of this principle is all the more crucial in disputes concerning restrictive measures. Especially when exceptional circumstances justify the adoption of pervasive restrictions of individual rights in name of public interest, the EU courts must fulfil their duty to uphold the rule of law with increased vigilance.11 It is significant that, under the new RPGC, the adversarial principle is asserted explicitly under Article 64, titled

9 See eg Case T‑85/09 Kadi v Commission EU:T:2010:418, para 134 (in particular paras 171–84). See also Case T‑494/10 Bank Saderat Iran v Council EU:T:2013:59, upheld in Case C‑200/13 P Council v Bank Saderat Iran EU:C:2016:284. 10 Under the former RPGC, the adversarial principle was interpreted extensively. See eg Case C‑564/08 P SGL Carbon v Commission EU:C:2009:703, paras 23 and 31, where the relevance of the adversarial principle was recognised even with regard to the pleas raised by the Court by its own motion. 11 See the Opinion of AG Poiares Maduro in Case C‑402/05 P Kadi v Council and Commission EU:C:2008:11, para 35: ‘[W]hen the risks to public security are believed to be extraordinarily high, the pressure is particularly strong to take measures that disregard individual rights … [I]n those instances, the courts should fulfil their duty to uphold the rule of law with increased vigilance’.

188  Marc Jaeger ‘Adversarial nature of the proceedings’. Under this article, ‘the General Court shall take into consideration only those procedural documents and items which have been made available to the representatives of the parties and on which they have been given an opportunity of expressing their views.’ This explicit mention marks the exceptional nature of any limitation to the adversarial principle. Indeed, the introduction of a limitation to this principle under Article 105 of the RPGC was the result of long and intense reflection and debate, taking into account and consolidation of judicial practices within the EU judicature and within the European Court of Human Rights (ECtHR). The need to balance defence rights with confidentiality issues was certainly not new in EU jurisprudence. It was in disputes of a mostly economic character that some important developments regarding the appraisal of confidential evidence took place. Article 67 of the former Rules of Procedure of the General Court first introduced the possibility that the judge, but not all the parties, could have access to certain information and documents which are confidential but relevant to deciding the case. This article was added in 2000 through an amendment aimed at giving formal effect to a jurisprudential development in the field of competition law, in the Steel Beams cases.12 Furthermore, on one occasion, long before the adoption of Article 105 of the RPGC, the General Court had accepted the proposal of the parties to partially subtract some evidence from the adversarial mechanism, by ‘allowing the Commission to submit certain documents and information which had been transmitted to it on a confidential basis by communicating them solely to the applicant’s counsel, to the exclusion of the applicant itself ’.13 More recently, in Mobistar and then in Varec, the Court of Justice held that the adversarial principle must be balanced against the right of other economic operators to the protection of their confidential information and their business secrets.14 It is in relation to public security, however, that the need to protect confidential information appeared particularly acute. In the field of terrorism prevention, state authorities and,

12 In 1994, 11 undertakings brought actions for the annulment of a Commission decision under the Treaty establishing the European Coal and Steel Community concerning concerted practices by producers of steel beams. The actions were dealt with together and, for part of the procedure, joined. In contrast with the Rules of Procedure in force at the time, the Commission did not transmit to the Court of First Instance (CFI) all the documents relating to the case until required to do so by the CFI, and asked the CFI not to disclose part of those documents as they could contain business secrets or fell under the obligation of confidentiality enshrined in the EU Treaties. The CFI pre-screened those documents and only placed into the case-file those that it would take into consideration to decide on the case. See Cases T‑134/94 NMH Stahlwerke v Commission EU:T:1999:44; T‑136/94 Eurofer v Commission EU:T:1999:45; T‑137/94 ARBED v Commission EU:T:1999:46; T‑138/94 Cockerill-Sambre v Commission EU:T:1999:47; T‑141/94 Thyssen Stahl v Commission EU:T:1999:48; T‑145/94 Unimétal v Commission EU:T:1999:49; T‑148/94 Preussag v Commission EU:T:1999:51; T‑151/94 British Steel v Commission EU:T:1999:52; T‑156/94 Aristrain v Commission EU:T:2004:261; and T‑157/94 Ensidesa v Commission EU:T:1999:54. See also the Opinion of AG Sharpston in Case C‑450/06 Varec EU:C:2007:643, para 52. 13 Case T‑464/04 Impala v Commission EU:T:2006:216, para 18. On confidentiality issues in competition law and other economic law cases before EU courts, see K Jürimäe and P Hecker, ‘Preuve et secret – une nouvelle ère… ’, in A Tizzano, A Rosas, R Silva de Lapuerta, K Lenaerts and J Kokott, La Cour de justice de l’Union européenne sous la présidence de Vassilios Skouris, Liber amicorum (Brussels, Bruylant, 2015) 321–24; S Papasavvas, ‘Confidentiality Issues in Competition Law. The Impact of Confidentiality Issues on Proceedings before the CFI’, in H Kanninen, N Korjus, A Rosas, EU Competition Law in Context: Essays in Honour of Virpi Tiili (Oxford, Hart Publishing, 2009) 221–232. 14 See Cases C-434/04 Mobistar SA v Institut belge des services postaux et des télécommunications (IBPT) EU:C:2006:463, para 40, and C-450/06 Varec SA v État belge EU:C:2008:91, para 51.

Balancing Security Reasons and the Adversarial Principle  189 as a consequence, EU authorities, have regularly relied on highly confidential evidence as a ground for applying a restrictive measure to an individual, group or other entity.15 This type of evidence is usually not disclosed beyond an extremely restricted number of authorised subjects; incidentally, the entitlement of Member States not to disclose classified evidence in relation to public security is also recognised in the Treaties.16 In this context, national and European judicatures have been confronted with the difficult challenge of appraising classified evidence and of defining the standard of judicial review that is most appropriate in disputes involving the lawfulness of measures aimed at preserving public security.

III.  The Emergence of New Procedural Techniques in ECHR and EU Case Law The ECtHR has been confronted with the question of admission and appraisal of classified evidence in criminal proceedings in a number of cases concerning an alleged breach of the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). In these cases, the ECtHR was called to decide on the compatibility with Article 6 of the fact that evidence, which had not been transmitted to the other party (closed evidence), was taken into consideration for deciding upon criminal charges. In Jasper v the United Kingdom, the ECtHR recognised that some limitations to the adversarial principle could be consistent with the right to a fair trial ‘for the sake of protecting an important public interest, such as national security’. However – the ECtHR held – only restrictions to the rights of defence which are strictly necessary are permissible, and under the condition that ‘any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.’17 In A and others v the United Kingdom, the ECtHR added a precondition for any legitimate limitation to the adversarial principle in criminal matters. Here under scrutiny was the mechanism, relied on in the United Kingdom in certain cases involving national security (including criminal cases concerning terrorism), foreseeing that some evidence is disclosed to a pre-cleared person (a ‘special advocate’) but not to the applicant. The ECtHR held that, even in such a case, the defendant should be provided with ‘sufficient information about the allegations against him to enable him to give effective instructions to the special advocate’.18 This jurisprudence of the ECtHR on criminal proceedings – although it concerned the application of Article 6 ECHR in a different context – had an impact on EU jurisprudence with regard to the appraisal of closed evidence in cases concerning the lawfulness of

15 With regard to restrictive measures adopted by the EU autonomously with an aim to combat terrorism, decisions as to the persons, group or entities to include in a list related to the freezing of funds are taken by the Council on the basis of information or material provided by a Member State (see eg Case T‑284/08 People’s Mojahedin Organization of Iran v Council EU:T:2008:550, at para 51). 16 Under Art 346 TFEU, ‘No Member State should be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security’. 17 Case no 27052/95 Jasper v the United Kingdom [GC], § 52; see also Case no 33354/96 Lucà v Italy, § 40. 18 Case no 3455/05 A and Others v the United Kingdom [GC], §§ 205 and 220. More recently, in Case no 35289/11 Regner v Czech Republic, the Grand Chamber of the ECtHR concluded, by a majority, that the restrictions to the

190  Marc Jaeger r­ estrictive measures. In this case law, the EU courts developed a set of minimum standards for the situation where, contrary to the adversarial principle, a main party – in practice, the EU institution that adopted a restrictive measure – intends to base its claims on certain information or material, but submits that its communication would harm the security of the EU or that of one or more of its Member States or the conduct of their international relations.19 In this situation, balancing the adversarial principle with security concerns is particularly difficult. In the field of restrictive measures, the burden of proof pertaining to the well‑foundedness of the measures resides with the competent EU institution. If this institution does not provide sufficient evidence which supports at least one of the reasons on the basis of which the contested measure has been adopted, the statement of reasons itself does not constitute sufficient grounds for the measure. In this latter case, in spite of the margin of appreciation of the competent institution, the measure will be annulled.20 Moreover, as it was repeatedly recalled in the jurisprudence of the General Court, ‘the legality of the contested measures may be assessed only on the basis of the elements of fact and of law on which they were adopted and not on the basis of information which was brought to the Council’s knowledge after the adoption of those measures’.21 As a consequence, if the Member State that provided the EU institution with the information justifying the application of a restrictive measure has not transmitted the supporting evidence to that institution before adoption of the measure, this situation can hardly be remedied before the judge. In view of the compelling reasons that may justify non‑disclosure of certain material and documents, a need gradually emerged for a mechanism that ensures adequate protection of very sensitive, security-related evidence in proceedings before EU courts. A strengthened protection of this kind of information and material during judicial proceedings might also have a positive impact on the willingness of Member States to transmit this type of evidence to EU authorities in view of the adoption of restrictive measures. An important step in the development of EU jurisprudence on closed evidence was taken in the PMOI and PMOI II cases.22 In these cases – decided when most of the case law applicant’s rights were counterbalanced by the power of domestic courts to fully examine the documents before them. According to the ECtHR, in regard of this circumstance, the very essence of the protection afforded by the right to a fair trial was not impaired. 19 As clarified by the Court of Justice, in order to ascertain the well-foundedness of a restrictive measure, the judge must ‘examine, first, the general criteria for inclusion in those lists, second, the grounds stated for including the applicant in such a list and, third, the evidence that his listing was well founded’, see C‑535/14 P Ipatau v Council, EU:C:2015:407, para 39. The third element of the internal lawfulness of restrictive measures – ie the appraisal of the evidence – represents therefore one of the essential parts of the full review that the EU judge is due to carry out as established in Kadi I. 20 Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi EU:C:2013:518, paras 120–22. As it was ruled in this judgment, ‘it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination … That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the summary provided by the Sanctions Committee. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned.’ 21 Case T‑155/13 Zanjani v Council EU:T:2014:605, para 65. See also Cases T‑720/14 Rotenberg v Council EU:T:2016:689, para 127 and T‑262/15 Kiselev v Council EU:T:2017:392, paras 102 to 104. 22 Cases T‑228/02 People’s Mojahedin Organization of Iran v Council EU:T:2006:384 (PMOI I), paras 154–55, and T‑284/08 People’s Mojahedin Organization of Iran v Council EU:T:2008:550 (PMOI II), para 75, upheld by the

Balancing Security Reasons and the Adversarial Principle  191 on restrictive measures concerned procedural guarantees – the General Court ruled that the judicial review of the lawfulness of a Community decision to freeze funds extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. Indeed, that review is all the more essential because it constitutes the only safeguard ensuring that a fair balance is struck between the need to combat international terrorism and the protection of fundamental rights. Since the restrictions imposed by the Council on the rights of the parties concerned to a fair hearing must be offset by a strict judicial review which is independent and impartial … the Community courts must be able to review the lawfulness and merits of the measures to freeze funds without it being possible to raise objections that the evidence and information used by the Council is secret or confidential.23

In Kadi II, the Court of Justice provided further details as to the procedure that EU courts must follow when the competent EU authority finds itself in the position of not being able to disclose evidence relied on for the listing of a person, group or entity.24 In some very wellknown paragraphs, largely inspired by Advocate General Sharpston’s Opinion in PMOI II, the Court of Justice held that where an EU institution, acting as defendant, adduces a threat to national or international security for non-disclosure of classified evidence, the EU judge should be in a position to assess if the invoked reasons for non‑disclosure are well founded. If that is not the case, the defendant shall have the choice to withdraw the evidence, or to accept disclosure to the other main party. If, on the contrary, the judge ascertains the

Court of Justice in Case C‑27/09 P France v People’s Mojahedin Organization of Iran EU:C:2011:853. In PMOI I, the General Court also clarified that because it could not substitute its assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council, ‘the review carried out by the Court of the lawfulness of decisions to freeze funds must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the Council’s assessment of the factors as to appropriateness on which such decisions are based’ (see para 159). In PMOI II, the General Court added that, although ‘the Council possesses broad discretion in that sphere, that does not mean that the Court is not to review the interpretation made by the Council of the relevant facts. The Community judicature must not only establish whether the evidence relied on is factually accurate, reliable and consistent, but must also ascertain whether that evidence contains all the relevant information to be taken into account in order to assess the situation and whether it is capable of substantiating the conclusions drawn from it’ (para 55). In both cases, the Court found that neither the written pleadings of the different parties to the case, nor the file material produced before the Court, enabled it to conduct its judicial review (see in particular PMOI I, para 66, and PMOI II, para 59). See also Opinion of AG Sharpston in Case C‑27/09 P France v People’s Mojahedin Organization of Iran EU:C:2011:482, paras 85–86, where the twofold test defined in PMOI II was defined as ‘unexceptionable.’ 23 Cases T‑228/02 People’s Mojahedin Organization of Iran v Council EU:T:2006:384, para 155, and T‑284/08 People’s Mojahedin Organization of Iran v Council EU:T:2008:550, para 75. 24 In Kadi I, while examining the respect of the rights of defence of the applicant, the Court of Justice had already clarified that ‘although overriding considerations relating to safety or the conduct of the international relations of the Community and of its Member States may militate against the communication of certain matters to the persons concerned, that does not mean, with regard to respect for the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism. In such a case, it is the task of the Community judicature to apply, in the course of the judicial review it carries out, techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice’ (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, para 344).

192  Marc Jaeger e­ xistence of an actual threat in the specific case, the evidence shall not be disclosed. In order to strike an appropriate balance between security reasons and the principle of an adversarial process, it is legitimate to consider other possibilities, such as the disclosure of a summary outlining the information’s content or that of the evidence in question.25 In spite of these developments, and as emphasised by Advocate General Sharpston in PMOI II, what was still missing in the RPGC was a ‘provision for the production of evidence that is truly confidential for consideration by that Court in a way that is compatible with its character without doing unacceptable violence to the rights of the other party or parties to the action’.26 In concrete terms, what was missing was a provision that, in exceptional, securityrelated circumstances would allow the admission to the file of information and material that would not be disclosed to the other main parties.

IV.  The Process Behind the New Procedural Framework The EU courts were thus confronted with the need to reconcile the legitimate objectives of security policy, especially as regards restrictive measures in the field of counterterrorism, and the specificities of the evidence often relied upon in this field (often very sensitive, classified evidence), with the crucial role played by procedural guarantees. In this context, the adversarial mechanism not only plays a role in view of the respect of the rights of defence per se, but it also enables basing judgments on evidence that has been the subject of discussion and examination by the other parties – in other words, better-quality evidence. Theoretically, a possible solution to this dilemma would have been to lower the standard of judicial review applied by the judge when assessing the legality of an act of an EU institution when this act is aimed at safeguarding public security or international relations. This would have implied for the EU judge to make a partial control of that legality, limited to verifying that no manifest error of appreciation has been made by the competent EU institution. As for the case law on the well-foundedness of restrictive measures, this would have meant limiting judicial review to manifest errors committed by EU institutions when interpreting and applying the general application criteria of restrictive measures and to the general existence and relevance of the supporting evidence. Such a limited review, however, did not seem compatible with the crucial role of the adversarial principle in the EU legal order and with the pervasive effects that restrictive measures have on the fundamental rights of targeted persons.27 The principle of an adversarial process is a cardinal principle of the EU judicature and a corollary of the right to a fair trial and to an effective remedy, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (Charter). As such, any restriction of the adversarial principle was to be framed within the lines of Article 52(1) of the Charter, that is, subject to the conditions that any limitation of that right respects its

25 See Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi EU:C:2013:518, paras 119–31; with regard to the appraisal of classified evidence in national judicial proceedings, see also Case C‑300/11 ZZ EU:C:2013:363, paras 57–68. 26 Opinion of AG Sharpston in Case C‑27/09 P France v People’s Mojahedin Organization of Iran EU:C:2011:482, para 186. See also NJ Forwood, ‘Closed Evidence in Restrictive Measures Cases: a Comparative Perspective’, in K Bradley and A Whelan, Of courts and constitutions: liber amicorum in honour of Nial Fennelly (Oxford, Hart Publishing, 2014) 107. 27 See Case T‑85/09 Kadi v Commission EU:T:2010:418, para 151.

Balancing Security Reasons and the Adversarial Principle  193 essence and, subject to the principle of proportionality, is necessary and genuinely meets objectives of general interest recognised by the EU.28 The works aimed at exploring the possibility to introduce a new procedural mechanism into the RPGC in order to deal with security-related evidence began within the General Court, inside the Committee for the Rules of Procedure. Subsequently, in view of the sensitive nature of the issue discussed, and of possible appeals against judgments of the General Court in proceedings in which Article 105 of the RPGC would have been applied, those works continued within a Joint Committee, comprising members of the two EU courts. At the moment when the Joint Committee was launched, some important judgments by the ECtHR and by the EU courts had already been delivered and could serve as a basis for discussion. The Rules of Court of the ECtHR, in contrast, could not serve as an inspiration as – although this Court had already been confronted with the issue of closed evidence in national systems – they contained no specific rules for the case where a party demands non‑disclosure of security-related evidence in proceedings before the ECtHR itself. After intense internal debate, in agreement with the Court of Justice, and after consultation of the Security Committee of the Council, the General Court submitted its draft new Rules of Procedure for the approval of the Council under Article 254 TFEU on 14 March 2014. Draft Article 105, largely based on Court of Justice’s jurisprudence,29 was later discussed, within the Court of Justice Working Group of the Council, between Member States’ delegations and representatives of the Court of Justice of the European Union and the Council. Some Member States asked for a closer control over the information or other material that they have transmitted to an EU institution, before and after this information or material is produced before the EU courts. This clearly posed a problem since the General Court only communicates with the parties to the disputes; hence, it is up the institution party to the dispute to produce information or material allowing the judge to carry out its review.30 Although a total control by the originating Member State was not agreed upon, the retained text allows Member States – in part implicitly, in part explicitly – to exert increased control over the information or material they had transmitted to an EU institution.31 The final text was finally adopted by unanimity, but with the United Kingdom expressing concern for the lack of a mention in the text, on the one hand, that the holder of the document can withdraw it at any moment during the procedure and, on the other, that it only applies to cases pertaining to restrictive measures. For the situation where an appeal is brought before the Court of Justice against a decision of the General Court in proceedings in which some information or material has been included in the file under Article 105 of the RPGC, the Rules of Procedure of the Court of 28 See Case C‑300/11 ZZ EU:C:2013:363, para 51. 29 See ‘Draft Rules of Procedure of the General Court’, 17 March 2014, 7795/14, at 103. 30 See E Coulon, ‘Articolo 105: Trattamento di informazioni o atti che interessano la sicurezza dell’Unione o di quella di uno dei suo stati membri o le loro relazioni internazionali’, in A Amalfitano, M Condinanzi e P Iannuccelli (eds), Le regole del processo dinanzi al giudice dell’Unione europea (Editoriale scientifica, 2017) 1206, 1211. 31 The adopted text provides, first, that the overriding reasons put forward by the main party to justify the confidential handling of that information or material may include reasons provided by the Member State concerned; second, that the party to a dispute may refuse to transmit information or material following a measure of enquiry; third, that an authorisation by the party that transmitted the information or material is necessary before transmission of a non‑confidential version, or summary, is transmitted to the other party; fourth, and this represents the most significant modification to the initial version of the text, it foresees the possibility that the party that transmitted to the Court a non-confidential version or summary withdraws it under certain time limits – possibly after consultation of the Member States that transmitted the information or material. See below.

194  Marc Jaeger Justice (RPCJ) were also amended, with the introduction of Article 190(a). Indeed, appeals that might be brought before the Court of Justice against a decision, which the General Court has adopted in the context of Article 105 of the RPGC, cannot be treated in the same way as ordinary appeals: Special measures [had to be] taken by the Court of Justice to deal with those appeals in an appropriate manner and to ensure that the information and material concerned is afforded a high level of protection, at least equivalent to that which it will have had throughout the proceedings before the General Court.32

Both Article 105 of the RPGC and Article 190(a) of the RPCJ presuppose that the information and material produced in accordance with Article 105(1) or (2) of the RPGC should enjoy, while proceedings are pending before the EU courts, at least the same level of protection as they enjoyed before being produced in court. To that end, Article 105(11) of the RPGC and Article 190(5) of the RPCJ condition their entry into force to the adoption by each of the two courts of a decision defining the security rules applicable to that information or material. The Decision of the General Court on security rules applicable to information and ­documents produced under Article 105 was adopted on 14 September 2016.33 Shortly after, on 20 September 2016, the Court of Justice adopted Decision (EU) 2016/2386 of the Court of Justice of 20 September 2016 concerning the security rules applicable during the appeal procedure to information or material produced before the General Court in accordance with Article 105 of the RPGC.34 These two decisions are based on the principle that only those people that have an effective need to know certain information or material shall be allowed to have access to it. In order to guarantee a high level of protection, the fundamental principles and minimum security rules are based on those applicable for the protection of ‘SECRET UE/EU SECRET’ classified information, according to the rules of the EU institutions on the protection of European Union classified information (EUCI), in particular those adopted by the Council of the European Union, the European Parliament and the European Commission.35

V.  The Balancing Mechanism Introduced by the New Article 105 of the RPGC Article 105 is included in Chapter VII, ‘Information and material pertaining to the security of the EU or that of one or more of its member states or to the conduct of their international relations’, of the RPGC. It must be read jointly with articles 103 and 104. Articles 103 to 105

32 See the letter by the President of the Court of Justice, Koen Lenaerts, to the President of the Council, Bert Koenders, of 15 March 2016, distributed by the Council to national delegation by note of 1 April 2016, 7507/16. 33 Decision (EU) 2016/2387 of the General Court of 14 September 2016 concerning the security rules applicable to information or material produced in accordance with Article 105(1) or (2) of the Rules of Procedure; [2016] OJ L355/18. 34 Decision (EU) 2016/2386 of the Court of Justice of 20 September 2016 concerning the security rules applicable to information or material produced before the General Court in accordance with Article 105 of its Rules of ­Procedure, [2016] OJ L355/5. 35 Decision (EU) 2016/2387, see n 33 above, recital 4.

Balancing Security Reasons and the Adversarial Principle  195 are based on the principle that, under any circumstance, the secret cannot be opposed to the judge,36 replace Article 67(3), second and third subparagraphs, of the former Rules of Procedure and must be interpreted in the light of the statement of the adversarial principle contained in Article 64.37 Outside the scope of application of Article 105 of the RPGC, confidential information and material is treated according to Article 103. Article 103(1) of the RPGC essentially reproduces the second subparagraph of former Article 67(3), but adds concrete rules on the handling of the concerned information or material, which have their origin, essentially, in the General Court’s case law on trade secrets.38 Article 105 was included in the RPGC through an amendment39 and it entered into force in December 2016, upon entry into force of the Decision of the General Court of 14 September 2016 on security rules applying to information and documents produced under Article 105. The steps of the judicial review foreseen by Article 105 have been largely inspired by the judgment of the Court of Justice in Kadi II.40 In accordance with that judgment, Article 105 of the RPGC allows the General Court to take into consideration, in view of its decision, evidence which is not disclosed to the other main party, not even in nonconfidential version or in the form of a summary. Hence, the article introduces an exception to the adversarial principle and, in view of that, requires that the judge carry out an ex ante proportionality review, in accordance with Article 52(1) of the Charter, in order to reduce such an exception to what is strictly necessary. It is in light of these considerations that the decision on the issue of whether and to what extent the nature of that information or material justifies a restriction of the adversarial principle must rest with the judge. Under the retained text, following the modifications introduced within the Court of Justice Working Group of the Council, when a main party intends to base his claims on certain information or material but submits that its communication would harm the security of the EU or of its Member States or the conduct of their international relations, that party – and, to some extent, the Member State(s) that first transmitted the information or document – maintains control over its disclosure. However, the judge has the last word on the existence of the overriding reasons invoked, on the necessity to put that information or material into the case file for deciding upon the case, and on the extent to which a non-confidential version or summary of that information or material would not impair the procedural rights of other main parties disproportionately. 36 This principles was already affirmed in the case law; see eg Joined Cases T‑439/10 and T‑440/10, Fulmen and Mahmoudian v Council, EU:T:2012:142, para 100. 37 Under Art 64, ‘Subject to the provisions of Article 68(4), Article 104, Article 105(8) and Article 144(7), the General Court shall take into consideration only those procedural documents and items which have been made available to the representatives of the parties and on which they have been given an opportunity of expressing their views.’ 38 See eg Cases T-464/04 Impala v Commission EU:T:2006:216; T-282/06 Sun Chemical Group and Others v Commission EU:T:2007:203; T-279/04 Editions Jacob v Commission EU:T:2010:384; and T-452/04 Editions Jacob v Commission EU:T:2010:385. See also the Draft Rules of Procedure of the General Court, 17 March 2014, 7795/14, at 100. 39 See the ‘Explanatory notes to the draft amendment of the rules of procedure of the Court of Justice’, distributed by the Council to national delegations by note of 1 April 2016, 7507/16. 40 Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi EU:C:2013:518, paras 125–30. See below. On the steps of the review that the judge must carry out under Art 105 RPGC, see eg E Coulon, ‘Articolo 105 – Trattamento di informazioni o atti che interessano la sicurezza dell’Unione o di quella di uno dei suoi Stati membri o le loro relazioni internazionali’, in A Amalfitano, M Condinanzi e P Iannuccelli (eds), Le regole de processo dinanzi al giudice dell’Unione Europa (Editoriale scientifica, 2017) 1206–16.

196  Marc Jaeger When the General Court receives an application by a main party for confidential treatment of some information or material under Article 105 of the RPGC, the Court shall, first, assess whether the overriding reasons claimed by that party are justified; the reasons put forward by the main party may include those provided by the Member State(s) concerned.41 This assessment may require complex political and technical considerations by the judge, including on the security interests of Member States and on the risks that disclosure may bring for the persons involved. However, this assessment is crucial in order to ascertain whether security interests have been clearly overestimated. When the production of the information or material concerned has been requested by the General Court through a measure of inquiry, formal note shall be taken of any refusal.42 If the General Court decides that the information or material produced before it is relevant in order to rule in the case and is confidential for the purposes of the proceedings, it shall weigh the right to an effective remedy against the competing security requirements, and make a reasoned order specifying the procedures to be adopted in order to accommodate those interests. These procedures may encompass the production, and subsequent communication to the other party, of a non‑confidential version or non-confidential summary of the information or material. The party that transmitted the information or material must give authorisation before a non‑confidential version, or a summary, is transmitted to the other party.43 Within two weeks after the reasoned order, the party that transmitted a non‑confidential version or summary to the General Court is allowed to withdraw it, with the effect that that information or material shall not be taken into account in the assessment of the case. This possibility represents the most significant modification to the initial version of the text and must be seen in light of the request by some Member States to be able to exert a strengthened control over the information and material they have transmitted to EU authorities even during judicial proceedings.44 The possibility, for a main party, to withdraw information or material already put in the case file is exceptional within the system of the RPGC. Its use might be justified, for example, in case the owner of that information learns of a threat to that information, or if re-classification of the information to a higher or lower security level makes it appropriate to remove it from the file, or enables full disclosure. The limitation in time of the possibility of withdrawal is necessary in order to avoid it taking place at a moment of the procedure – for example, during the deliberation stage – where the information or material concerned may already have been taken in consideration in view of the decision. Incidentally, an ex post withdrawal would be partially void of its sense after notification of the documents concerned to the other parties. Where information or material which – owing to its confidential nature – has not been communicated to the other main party in a non-confidential version is essential in order for it to rule in the case, the judge must carry out a further balancing exercise, and base his judgment on such information or material only to the extent that this is strictly necessary. Eventually, when assessing that information or material, the General Court shall take account of the fact that a main party has not been able to make his views on it known. This entails, in substance, that



41 See

Art 105(1) RPGC. Art 105(2). 43 ibid, Art 105(4)–(6). 44 ibid, Art 105(7). 42 ibid,

Balancing Security Reasons and the Adversarial Principle  197 the judge must devote particular attention to the appraisal of the conclusiveness and quality of evidence on which the other main party was unable to respond.45 Despite the request by some Member States to restrict application of Article 105 of the RPGC to disputes concerning restrictive measures, and although this article was indeed conceived in relation with these disputes, its application was not limited rationae materiae. This seems well balanced, not only in consideration of other fields where it can already be envisaged to apply, but also of other types of disputes that the General Court may be called to judge upon in the future. The application of Article 105 of the RPGC can be envisaged, for instance, with regard to an action for annulment of a Commission decision which declares a state aid in the field of energy unlawful. Indeed, in such a dispute, a Member State might be requested to submit highly sensitive documents pertaining to the national energy provision of its civil nuclear programme, the disclosure of which might actually compromise state security. Its application might also be considered, again in the context of an action for annulment of an act of an institution, in case the defendant institution is ordered to produce internal documents, relating to security measures or containing recommendations addressed to EU delegations.46 However, it is not possible here to give full account of all the possible applications of this new legal framework. These procedural techniques will allow the EU Courts to be better equipped for any case where a Member State or an institution invokes the impossibility to produce a given piece of information or material on the ground of overriding considerations pertaining to security or to the conduct of its international relations. Where an appeal is brought before the Court of Justice against a decision of the General Court in which some information or material had been put into the file under Article 105 of the RPGC, Article 190(a) of the RPCJ applies. The terms of Article 190(a) RPCJ are very different from those of Article 105 RPGC. This reflects the different function performed by the General Court at first instance and by the Court of Justice when seised of an appeal. Indeed, in the latter case, ‘the Court of Justice confines itself to carrying out a review of the lawfulness of the contested decision … In other words, the Court of Justice does not itself assess the relevance to the outcome of the dispute of the information or material but merely pronounces, having regard to the appellant’s grounds of appeal, on the sense to be given to the facts and evidence submitted to it and on the legal characterization of the facts and evidence.’47 Because of this essential difference between functions performed by the two courts, Article 190(a) of the RPCJ provides essentially for the availability of evidence to the Court of Justice; the protection afforded to those pieces of evidence during the procedure before the Court of Justice through, in particular, the non-communication 45 ibid, Art 105(8). 46 See E Coulon, ‘Articolo 105: Trattamento di informazioni o atti che interessano la sicurezza dell’Unione o di quella di uno dei suoi Stati membri o le loro relazioni internazionali’, in A Amalfitano, M Condinanzi e P Iannuccelli (eds), Le regole del processo dinanzi al giudice dell’Unione europea (Napoli, Editoriale scientifica, 2017) 1206, 1210. With regard to the second situation that has been mentioned, it is possible to consider that facts as those that gave rise to a dispute brought before the Civil Service Tribunal in 2009 (although this was an action for compensation) might justify today the application of Art 105 RPGC (see Case F‑50/09 Missir Mamachi di Lusignano v Commission EU:F:2011:55, paras 145–49). 47 See the ‘Explanatory notes to the draft amendment of the Rules of Procedure of the Court of Justice’, distributed by the Council to national delegations by note of 1 April 2016, 7507/16, at 3. See also the amendment proposed by the General Court and concerning the return of documents upon conclusion of the proceeding before the Court. Available at data.consilium.europa.eu/doc/document/ST-7212-2016-INIT/en/pdf.

198  Marc Jaeger of those pieces to the parties in the proceeding and the non-disclosure of the confidential information concerned in the documents issued by the Court of Justice; and, at the end of the procedure, the return of the document or material to the main party that produced it or the making available of it to the General Court if the Court of Justice, after annulling the contested decision, refers the case back to the General Court for a ruling.48 Articles 105 of the RPGC and 190(a) of the RPCJ, together with the two decisions establishing the relevant security rules, mark the ability of the EU courts to react to a changing reality. Indeed, confronted with a new set of disputes tightly related with security issues, EU courts lacked a procedural technique which accommodates, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to guarantee to individuals a sufficient degree of procedural justice. The adoption of a new procedural framework enshrined in Articles 105 of the RPGC and 190(a) of the RPCJ filled this gap. Although the confidential treatment based on Article 105 of the RPGC allows a limitation of the adversarial principle, it emerges from the text of the Article, as well as from preparatory works and from a systematic interpretation of the RPGC, that this limitation is only to be admitted by the judge in exceptional cases and upon a strict proportionality review. The solution retained rejects a limited conception of judicial review which is limited to discerning manifest errors of appreciation, and is faithful to the role of the General Court in ensuring a proper assessment of the circumstances of the case, including in the light of the judge’s ‘own conception of fairness and common sense.’49 The fact that, at the time of writing,50 Article 105 of the RPGC has not yet been invoked by the parties to disputes before the General Court requires reflection. Certainly, the transfer of particularly sensitive information before adoption of EU decisions implies mutual trust between institutions and between institutions and Member States. According to settled case law, the lawfulness of the decision of an EU institution is assessed on the basis of the information and material that served as the basis for its adoption;51 arguably, by guaranteeing stronger protection to security-related evidence produced before the EU courts, this new procedural framework could have an impact on the quality and quantity of supporting evidence that Member States provide to the EU institutions in view of the adoption of restrictive measures or other security-related decisions. In this perspective, these new rules contribute to even better-founded judicial decisions and, ultimately, to further strengthening the legitimacy of the EU jurisprudence involving the appraisal of acts based on highly confidential information.

VI.  Concluding Remarks While appreciating the lawfulness of the EU institutions’ decisions related to public security, the EU judge has been confronted with the situation where the competent institution has 48 ibid. 49 D Edward, ‘Due process and judicial protection and the Kadi Saga’, in K Bradley and A Whelan (eds), Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly (Oxford, Hart Publishing, 2014) 85. 50 28 November 2018. 51 See n 21 above.

Balancing Security Reasons and the Adversarial Principle  199 relied on highly confidential, security-related, evidence. The annulment of some of these decisions on grounds that the EU institution did not produce this information or material before the EU courts raised the concern that the attainment of some among the most compelling interests of the EU or of a Member State might be disproportionately impaired. However, this concern should be weighed against the crucial role of the adversarial mechanism, one of the most established procedural guarantees for the EU judicature. Moreover, whenever EU institutions make decisions that have a considerable impact on the rights of individuals, the judicial accountability of these institutions is crucial in order to uphold the rule of law and democracy. Before the disruptive effects of terrorism or other severe security threats, a new, but strict, standard of review should be conceived in order to equip the EU courts to best fulfil their function. Indeed, a truly effective judicial review is one that takes all the competing sets of interests fully and properly into account. In light of these considerations – and with an increasing awareness of the need to reconcile security interests and procedural rights in this context – an intense debate, which was conducted first within the EU courts and later between these courts, the Council and Member States, led to the adoption of Articles 105 of the RPGC and 190(a) of the RPCJ. This new procedural framework ensures, on one hand, that a strict proportionality review is carried out before any limitation of the adversarial principle is admitted; on the other, it allows the party that transmitted confidential information or material – and, to a limited extent, the originating Member State – to exert some control over it during a considerable part of the procedure. As on several other occasions, the General Court, as the court of facts, was at the forefront of EU law: it was at the forefront in taking a position over an appropriate standard of review, and in adapting its Rules of Procedure to a new type of disputes. The introduction of a new technique able to ensure a strengthened protection for highly confidential information and material had been supported and encouraged by other EU institutions and by several Member States. The fact that application of Article 105 of the RPGC has not yet been invoked lends itself to different interpretations. Hopefully this new legal framework will contribute to strengthening both the protection of procedural rights of the parties and the efficiency of EU security policy in the field of restrictive measures as in other, perhaps new, sets of disputes in the future.

200

14 The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it MAREK SAFJAN AND DOMINIK DÜSTERHAUS*

I. Introduction This contribution builds upon three complementary strands of the Court of Justice’s (ECJ or Court) case law which Allan Rosas has actively helped shape over the last 17 years, ie the rights conferred by European Union (EU) citizenship, the EU standard of effective judicial protection and the terms of the Court’s special relationship with the courts and tribunals of the Member States. A number of topical cases shall illustrate how the ECJ, when faced with unprecedented challenges, can still faithfully execute its constitutional mandate within the confines of the procedural and substantive limits imposed upon it by the EU Treaties. Their common feature is the exercise of ECJ scrutiny on what seems to be the fringes of EU law but turns out to be its very essence, ie the need for its directly applicable rules to be given full force and effect under all circumstances1 and even in matters falling otherwise within the competence of the Member States.2 We also argue that, notwithstanding the limited scope of EU law, the conditions of judicial protection of individual rights in the Member States are a matter for ECJ scrutiny and Commission oversight. This even more so, now that the institutional and individual guarantees of effective judicial protection (Articles 19(1)(2) TEU and 47 Charter of Fundamental Rights of the European Union (Charter)) have been made explicit in EU primary law. These considerations allow us to refute claims to the effect that ECJ scrutiny of whether a Member State protects individual rights, respects the rule of law and guarantees judicial independence would amount to a competence creep. While a brief look into the Treaties suffices to confirm these obligations, which are indeed co-substantial to EU membership, we worry about the fate of individual citizens in non-compliant Member States. Does EU law as interpreted by the ECJ and enforced by the Commission effectively empower these citizens to exercise the rights conferred upon them? This question inspires the following reflections. * Opinions expressed are those of the authors alone. 1 Settled case law, see notably Case 106/77 Simmenthal EU:C:1978:49, para 22; Case C-213/89 Factortame e.a. EU:C:1990:257, para 20; Case C-409/06 Winner Wetten EU:C:2010:503, para 56. 2 Settled case law, see notably Case C-553/16 TTL EOOD EU:C:2018:604, para 44; and Joined Cases C-76/05 Schwarz and Gootjes-Schwarz EU:C:2007:492, paras 67–70.

202  Marek Safjan and Dominik Düsterhaus

II.  The Right to have Rights and the Role of the Court Since the inception of our ‘Ever-Changing Union’, its apex court has been called upon numerous times to provide certainty and stability in respect of sensitive issues and unprecedented challenges. It must have done so wisely, for its authority is still beyond doubt – even now that the very idea of a Union based on common values has come under attack in multiple ways, Europeans turn to their Court of Justice for guidance. They rightly expect it to prevent lasting damage to the EU legal order without transgressing the confines of its jurisdiction. This requires legally sound, perspicacious and prudent reasoning. How does the Court meet these requirements?

A.  Judicial Brevity and Constitutional Adjudication As anyone privy to judicial deliberations will agree, the black letter of a court’s ruling often only conveys a faint scent of the multiple arguments and considerations which were pondered, entertained or discarded in camera. This is particularly true of judgments rendered by the ECJ. By their brief and formulaic assessment of highly contentious issues they epitomise the unavoidable discrepancy between the argumentative wealth of the deliberative process and the certainty required of judicial decisions. There may even be a rule of thumb according to which the shorter an important judgment is, the more contentious its deliberations were. While the secrecy of the latter prevents us from shedding light on this matter, we would submit that the merits of a decision are independent of its eloquence. At the same time, we are indeed aware that particularly close-mouthed rulings leave national judges, authorities and scholars wondering as to their implications and occasionally give rise to new uncertainties. Ruiz Zambrano,3 for example, a prime illustration of judicial brevity, sparked scholarly imagination to the point of viewing it as the Court’s admission that EU citizenship conferred fundamental rights protection beyond the material scope of the Treaties. This stance has intrigued us ever since.4 Indeed, as scholars, we have a lot of sympathy for legal imagination and, as constitutionalists, we could not agree more with the assertion that citizenship involves fundamental rights protection. And since the Court has unequivocally held that ‘the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter’,5 we continue to seek ways to associate EU citizenship with meaningful fundamental rights protection. However, in our capacities of, respectively, ECJ judge and référendaire, we would advise against making more of a particular judgment than what it actually says. That’s the law. Whatever else may have been pondered in camera stays there. Not least because the Court cherishes the stability and consistency of its case law,6 seemingly innovative ­holdings are 3 Case C-34/09 Ruiz Zambrano EU:C:2011:124. 4 See, on the one hand, M Safjan, ‘Between Mangold and Omega: Fundamental Rights versus Constitutional Identity’ (2012) Il Diritto dell’Unione Europea, 437 and, on the other, D Düsterhaus, ‘Union Citizenship after Ruiz Zambrano or How Many Rights are there in a Status’ in J Diez-Hochleitner Rodríguez et al (eds), Últimas tendencias en la jurisprudencia del Tribunal de Justicia de la Unión Europea (Madrid, Kluwer La Ley, 2012). 5 Case C- 617/10 Åkerberg Fransson EU:C:2013:105, para 21. 6 D Düsterhaus, ‘Eppur Si Muove! The Past, Present, and (possible) Future of Temporal Limitations in the Preliminary Ruling Procedure’ (2017) Oxford Yearbook of European Law 237.

The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it  203 hardly ever revolutionary. While the mandate under Article 19(1) TEU to ensure that the law is observed in the interpretation and application of the Treaties does at times require untapping the normative potential of previously neglected provisions in order to ensure adequate protection of individual rights,7 the Court is still bound by this very law in terms of substance and procedure. This notably prevents it from acting as a human rights adjudicator across the board by turning necessary limitations on supranational authority8 into domestic obligations. Yet again, just because a particular problem may be framed as one of fundamental rights protection beyond the scope of EU law, this does not prevent the Court from pursuing a solution which achieves the requisite protection within that very scope. In this regard, the Ruiz Zambrano judgment provides an instructive example insofar as it relied on the right-conferring function of EU citizenship rather than on what may well have been shaky fundamental rights grounds.9

B.  Ruiz Zambrano and the Right to have Rights The ECJ had been asked to assist the Brussels Labour court in dealing with a claim of unemployment benefits brought by Mr Ruiz Zambrano, a third country national father of two minor, sedentary EU citizens. While the referring court framed the legal problem as one of reverse discrimination, to be solved under Belgian law provided the ECJ would accept, in what seemed to be a Dzodzi situation,10 to interpret, by analogy, its Chen judgment11 on a carer’s right of residence in a child’s home Member State, the case soon developed a life of its own, testing the resilience of the ‘purely internal’ rule under the impact of EU citizenship. While Advocate General Sharpston had explored different avenues to bring the case within the scope of EU fundamental rights,12 the Court found such considerations expendable for Article 20 TFEU by itself required to entertain Mr Ruiz Zambrano’s claim. In the Court’s own words, this provision precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.

While, in the light of the Advocate General’s opinion, some scholars deemed the notion of ‘substance of the rights’ to refer to fundamental rights constituting the ‘very core’

7 D Düsterhaus, ‘EU Citizenship and Fundamental Rights: Contradictory, Converging or Complementary?’ in D Kochenov (ed), EU Citizenship and Federalism (Oxford, Oxford University Press, 2017). 8 On this original purpose of EU fundamental rights see F Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ (2011) European Law Journal 31. 9 See the opinion of AG Sharpston in Case C-34/09 Ruiz Zambrano (EU:C:2010:560). 10 Concerning the interpretation of fundamental freedoms in a purely internal situation on the basis of national legislation requiring to apply the same approach as that provided for by EU law (settled case law, see Joined Cases C-297/88 and C-197/89 Dzodzi EU:C:1990:360, paras 36, 37 and 41; Case C-28/95 Leur-Bloem EU:C:1997:369, paras 27 and 32; Case C-32/11 Allianz Hungária Biztositó and Others EU:C:2013:160, para 20; and Case C-268/15 Ullens de Schooten EU:C:2016:874, para 53). 11 Case C-200/02 Zhu and Chen EU:C:2004:639. 12 Opinion of AG Sharpston in Case C-34/09 Ruiz Zambrano EU:C:2010:560.

204  Marek Safjan and Dominik Düsterhaus of citizenship,13 thus transcending the existing limitations ratione materiae, its meaning turned out to be much more prosaic. The Court’s reference to the ‘substance of the rights’ had indeed to be read in opposition to ‘all the rights’14 and merely reflected the circumstance that an EU citizen forced to leave the Union may still be able to exercise some citizenship rights, but not those which require a presence in the territory of a Member State.15 Even when taken strictly literally, this seemingly enigmatic statement is groundbreaking, for it confirms the right-conferring function of EU citizenship. In other words, Article 20 TFEU not only grants the right to be a citizen, but also a ‘right to have rights’, ie those listed in Article 20(2).16 Based on this right, EU citizens can claim EU law protection beyond the specific scope of the listed rights if they would otherwise risk being unable to enjoy them. Such would be the case if an EU citizen were forced to leave the Union and would, as a consequence, not be able to exercise his freedom of movement across the EU. The additional layer of protection thus conferred by Article 20 TFEU imparts the essence of EU citizenship as a federal status.17 Its confirmation is by all means a sensitive issue for the Member States, for any EU law protection beyond the specific rights expressly granted under primary and secondary law further impinges on their powers. The alternative, however, ie accepting that EU citizens may be deprived of enjoying some of their citizenship rights, was not an option for the Court, as it would have denied the effectiveness of Article 20 TFEU.18 Navigating between these extremes obviously requires a great deal of caution. In determining the content and scope of the ‘right to have rights’, the Court has thus followed the incremental19 approach characteristic of its dealings with difficult matters. It has thus become clear that, just like any other individual right under EU law, the right to have rights/ right to stay in the EU has a narrow scope, that it is not absolute and can still be lost, subject to a proportionality test20 taking due account of the fundamental rights involved.21 On the

13 Eg M Van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (2012) 39 Legal Issues of Economic Integration 273; see also M Safjan, ‘Between Mangold and Omega: Fundamental Rights versus Constitutional Identity’ (2012) Il Diritto dell’Unione Europea, 447, as well as D Kochenov and R Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text’ (2012) 37 European Law Review 369. 14 K Lenaerts, ‘“Civis Europaeus Sum”: From the Cross-Border Link to the Status of Citizen of the Union’ (2011) 3 FMW Online Journal 6, ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=6193&furtherPubs=yes, accessed 23 October 2018. 15 S O’Leary, ‘The Past, Present and Future of the Purely Internal Rule in EU Law’ in M Dougan et al (eds), Empowerment and Disempowerment of the European Citizen (Oxford, Hart Publishing, 2012) 37. 16 See D Düsterhaus, ‘Union Citizenship after Ruiz Zambrano or How Many Rights are there in a Status’ in J Diez-Hochleitner Rodríguez et al (eds), Últimas tendencias en la jurisprudencia del Tribunal de Justicia de la Unión Europea (Madrid, Kluwer La Ley, 2012) 461. Of course, in its original, Arendtian sense, the ‘right to have rights’ refers to the citizenship status as a source of rights, ie mutatis mutandis to Art 20 TFEU as a whole. 17 On the normative potential of this status see D Kochenov (ed), EU Citizenship and Federalism (Oxford, Oxford University Press, 2017). 18 Case C-256/11 Dereci e.a. EU:C:2011:734, para 67; D Thym, ‘Towards “Real” Citizenship? The Judicial Construction of Union Citizenship and its Limits’ in M Adams et al (eds), Judging Europe’s Judges (Oxford, Hart, 2013) 168; N Nic Shuibhne, ‘(Some) of the Kids are allright’ (2012) 49 CML Rev 349, 375. 19 See K Lenaerts, ‘EU citizenship and the European Court of Justice's “stone-by-stone” approach’ (2015) ­International Comparative Jurisprudence 1. 20 Case C-135/08 Rottmann EU:C:2010:104. 21 Case C-304/14 CS EU:C:2016:674.

The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it  205 other hand, the Court has eventually accepted that fundamental rights considerations may come into play when assessing whether an EU citizen would indeed be ‘forced to leave’ without this exceptional right to stay.22 This should not come as a surprise, however, for the need to construe conditions and limitations to EU law guarantees in the light of fundamental rights has been part and parcel of EU law adjudication since time immemorial. As narrowly as its findings may have been construed in subsequent rulings,23 Ruiz Zambrano constitutes an instructive example of how, even under exceptional circumstances, EU law protection can still be granted within the confines of the Treaties. But how far does that protection go? Do the Treaties also protect EU citizens against and despite systemic violations of the rule of law in a given Member State?

III.  The Rule of Law and the Duty to Protect it In the aftermath of Ruiz Zambrano, the arguable embeddedness of fundamental rights in the citizen status had scholars wondering about a possible valorisation of this idea for the sake of policing fundamental rights protection in the Member States. It has notably been argued that, beyond the scope of the Charter, Member States could only remain autonomous in fundamental rights protection as long as they are presumed to ensure the essence of these rights enshrined in Article 2 TEU. Once there appears to be a systemic violation, the presumption is rebutted and individuals can rely on their status as Union citizens to seek redress before national courts, assisted by the ECJ.24 Like other timely reflections25 on how to counter systemic deficiencies of domestic fundamental rights protection, this is a laudable proposal. As the law stands, however, it appears to be a non-starter, not least because the citizenship status as such does not vouch for a generalised fundamental rights review of Member State Action.26 While EU citizens undoubtedly enjoy a more comprehensive fundamental rights protection than non-citizens, this seems to be a consequence of the greater number of protection-triggering rights27 conferred upon them under primary and secondary law and not of them being entitled to EU fundamental rights by status alone. We should thus look at the triggering potential of the citizenship rights. 22 Case C-133/15 Chavez-Vilchez and Others EU:C:2017:354. 23 For an overview see S Iglesias Sánchez, ‘Fundamental Rights and Citizenship of the Union at a Crossroads’ (2014) European Law Journal 464. 24 A von Bogdandy et al, ‘Reverse Solange: Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 CML Rev 489. 25 For example, AG Poiares Maduro had argued in Case C-380/05 Centro Europa 7 EU:C:2008:59, that European citizens would not be able to fully exercise their right to free movement in Member States which systemically violated fundamental rights. ECJ review of national measures outside its jurisdiction should not, however, take place ‘so long as the protection of fundamental rights in a Member State is not gravely inadequate’. One should not forget either that AG Jacobs has famously opined that the Union citizen exercising rights to freedom of movement can invoke the complete range of fundamental rights protected by EU law, Case C-168/91 Konstantinidis EU:C:1992:504. 26 See J Croon-Gestefeld, ‘Reverse Solange – Union Citizenship as a Detour on the Way to European Rights Protection against National Infringements’ in D Kochenov (ed), EU Citizenship and Federalism (Oxford, Oxford University Press, 2017). 27 D Düsterhaus, ‘EU Citizenship and Fundamental Rights: Contradictory, Converging or Complementary?’ in D Kochenov (ed), EU Citizenship and Federalism (Oxford, Oxford University Press, 2017).

206  Marek Safjan and Dominik Düsterhaus

A.  The Right to have Rights and the Rule of Law As recalled above, the EU citizenship status notably comprises the bundle of transnational and supranational rights listed in Article 20 TFEU. While they all share the same personal scope, their material scopes differ. Some rights require movement, others a presence in the EU, others again appear to be unconditional.28 It is safe to assume that an infringement of, or a derogation to, any one of these rights, be they transnational (free movement, nondiscrimination) or supranational (eg the right to petition the European Parliament) entitles to judicial review complying with Article 47 of the Charter. While, for the same reasons, these rights may also trigger the application of other Charter provisions relating to the specific situation at issue, they do not, however, entail a comprehensive scrutiny of Member State compliance with the fundamental rights and values common to all Member States. But what about Article 20 TFEU in its right-conferring dimension, ie the ‘right to have rights’ in the sense of Ruiz Zambrano, which grants a citizen EU law protection beyond the substantive scope of other citizenship rights to the extent that otherwise some of these rights could not be enjoyed? First of all, contrary to the citizenship status as an abstract category, the right to have rights embodied by Article 20(2) TFEU is without any doubt a suitable trigger for ECJ involvement upon request by national courts and tribunals. Moreover, seeking to apply it to systemic fundamental rights violations in a Member State insofar as such violations would make the exercise of citizenship rights in that state de facto impossible does not sound odd, either. Considering, however, that the European Union’s federal right to have rights has so far imposed particular duties on an EU citizen’s home Member State only in specific s­ ituations29 and to the sole extent that this citizen cannot effectively enjoy his rights anywhere else in the EU, it currently looks like a long shot to derive a mandate for comprehensive scrutiny of a Member State’s compliance with fundamental rights from Article 20 TFEU. This being said, we do submit that, on a proper construction of Article 20(2) TFEU, the right to have rights, which this provision embodies, yields a normative potential which reaches beyond the mere ‘right to stay in the EU’ for minor citizens, characterised by the Ruiz Zambrano case law. It may also have a role to play once Article 7 TEU has been triggered, as notably suggested by Article 7(3) TEU. Without speculating on specific circumstances under which an individual’s right to effectively enjoy the rights provided for in the Treaties would thus be infringed, a question to be ultimately answered by the ECJ, we would argue that, in order to trigger the duty to provide effective judicial protection in compliance with Article 47 of the Charter (ie by independent and impartial courts and tribunals) it suffices to make an arguable claim as to a possible infringement of the right to have rights conferred by Article 20(2) TFEU. It would then be for these courts and tribunals to bring any doubts as to their effectiveness, independence and impartiality before the ECJ. In any case, it appears that, with a view to tackling systemic deficiencies in the Member States, there is no need to advocate solutions beyond the substantive scope of EU law for the latter already comprises provisions and instruments allowing for the scrutiny of



28 See 29 See

in detail ibid. eg Case C-256/11 Dereci e.a. EU:C:2011:734, and Case C-304/14 CS EU:C:2016:674.

The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it  207 whether fundamental rights and essential values are indeed observed in the Member States. The key lies in the shared duty30 of EU and national courts to preserve the rule of law and to provide effective judicial protection of individual rights under EU law. Compliance with this duty on all levels is subject to ECJ review.

B.  The Rule of Law and Effective Judicial Protection Article 19(1) TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU,31 has a dual thrust, obliging both the ECJ and the Member States. The former must ensure that in the interpretation and application of the Treaties the law is observed while the latter must provide for effective judicial review designed to ensure compliance with EU law.32 Insofar as the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection.33 Compliance with the constitutional obligation to maintain a judicial system meeting the requirements of independence, impartiality, expedience and fairness can be controlled by the EU institutions both horizontally and individually. In a horizontal perspective, Article 19(1)(2) TEU notably constitutes the benchmark for Commission scrutiny leading to infringement actions against non-compliant Member States.34 Individually, the same provision may be invoked before national courts and tribunals in order to assess arguable deficiencies of its implementation on a case-by-case basis, in cooperation with the ECJ. This happened in Associação Sindical dos Juízes Portugueses (ASJP), a case initially brought by the trade union of Portuguese judges, which considered that a temporary reduction in the amount of remuneration paid to the members of the Portuguese court of auditors infringed the principle of judicial independence enshrined, inter alia, in Article 19(1)(2) TEU. In its judgment, our Court confirmed that this provision by itself allows assessing the independence of courts and tribunals acting in the fields covered by EU law. ASJP thus provides another example of how issues that seem to transcend the scope of EU law can perfectly well be addressed on the basis of the Treaties. The institutional guarantee of effective judicial protection in Article 19 TEU is, of course, still mirrored by the fundamental right to effective judicial protection and a fair trial under Article 47 of the Charter. However, while the latter may well be a binding,35 directly applicable and effective36 provision of EU law, the ECJ does not always have jurisdiction to interpret it in the preliminary ruling procedure. In line with Article 51(1) of the Charter, the Court can only adjudicate on Article 47 of the Charter in respect of legal situations

30 M Safjan and D Düsterhaus, ‘A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU’ (2014) Oxford Yearbook of European Law 3. 31 Case C-64/16 ASJP EU:C:2017:395. 32 Case C-216/18 PPU LM EU:C:2018:586, paras 50–51. 33 Case C-64/16 ASJP EU:C:2017:395. 34 See below, section IV. 35 See Art 6(1) TEU. 36 ‘Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such’, Case C-414/16 Egenberger EU:C:2018:257.

208  Marek Safjan and Dominik Düsterhaus f­ alling within the scope of EU law. This covers the actions of the EU institutions, bodies and agencies, as well as those of the Member States insofar as they are implementing EU law, ie applying, transposing, executing, derogating from, or simply infringing provisions other than those of the Charter.37 In order to establish ECJ jurisdiction in any given case, one such provision must be applicable in concreto.38 Four recent examples illustrate how this condition operates in practice. First of all, in Demarchi Gino Sas, the ECJ declined jurisdiction for the interpretation of Article 47 of the Charter in respect of an Italian legislation allegedly obstructing the award of compensation for excessively long legal proceedings. For the Court, nothing indicated that the dispute in the main proceedings related to the interpretation or application of a rule of EU law other than those set out in the Charter.39 Conversely, in Online Games, Article 47 of the Charter applied to the presumed lack of impartiality of an Austrian court ruling on an action for the annulment of confiscation measures allegedly infringing the rights of f­reedom to provide services and of freedom of establishment under Articles 56 and 49 TFEU respectively.40 In LM, the ECJ had jurisdiction to interpret Article 47 of the Charter because the case concerned the allegation that the execution of a European arrest warrant pursuant to the EU framework decision 2002/584 would result in a breach of the surrendered person’s right to a fair trial. While, in contrast, ASJP saw the Court merely drawing inspiration from ­Article 47 CFR for the interpretation of Article 19(1)(2) TEU, but not formally applying the former, this was only due to the circumstance that the original proceedings involved no individual invoking fair trial rights. The judgment does not expressly rule out the possibility of ­Article 19 TEU triggering the application of Article 47 of the Charter in other circumstances. The interplay of these provisions may become clearer in the context of a number of cases which were recently lodged in respect of Poland.

IV.  Adjudicating the Duty to Protect EU Rights and the Rule of Law While the ECJ gets involved with Member State action in both the preliminary ruling (Article 267 TFEU) and infringement (Article 258 TFEU) procedures, only the latter allow for direct scrutiny. Where the two run simultaneously, as they currently do in the matter of Polish judiciary reforms, their complementarity41 becomes most obvious.

37 M Safjan, D Düsterhaus, A Guérin, ‘La Charte des droits fondamentaux de l’Union européenne et les ordres juridiques nationaux, de la mise en œuvre à la mise en balance’ (2016) 2 RTD eur 219. 38 This has now become settled case law. For early reflections on the matter, see A Rosas, ‘The Applicability of the EU Charter of Fundamental Rights at National Level’ (2013) 13 European Yearbook on Human Rights 97, 108 and C Ladenburger, ‘Fundamental Rights’ (Institutional Report FIDE, 2012) 16. We have always advocated a reasonably functional approach, see M Safjan, ‘Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of conflict?’ EUI law working paper 2012/22, cadmus.eui.eu/bitstream/handle/1814/23294/ LAW-2012-22.pdf?sequence=1&isAllowed=y, accessed 23 October 2018. 39 Case C-177/17 Demarchi Gino Sas (order) EU:C:2017:656. 40 Case C-685/15 Online Games EU:C:2017:452. 41 As famously observed in Case 26/62 van Gen den Loos EU:C:1963:1.

The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it  209

A.  Infringement Actions Articles 19(1)(2) TEU and 47 of the Charter have recently been relied upon by the European Commission in respect of two Polish laws. On the one hand, regarding an amendment of 12 July 2017 to the Law on the Organisation of Ordinary Courts, the Commission submits that, by introducing provisions distinguishing between the retirement age for men and women working as ordinary judges, Supreme Court judges, and prosecutors, and by lowering the retirement age applicable to ordinary court judges, and at the same time granting the Minister for Justice the right to decide whether to extend the period of active service of judges, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU, the equal treatment directive 2006/54,42 as well as those under Article 19(1) TFEU, read in conjunction with Article 47 of the Charter.43 On the other hand, concerning the law on the Supreme Court, which entered into force on 3  April 2018, the Commission found that by, first, lowering the retirement age and applying that new retirement age to the judges appointed to the Supreme Court before 3 April 2018 and, second, granting the President of the Republic of Poland the discretion to extend the active judicial service of Supreme Court judges, Poland has infringed Article 19(1) TFEU, read in the light of Article 47 of the Charter.44 In view of the circumstance that the contested provisions had already taken effect, the Commission also requested interim measures in order to prevent a consolidation of the situation resulting from the forced retirement of active judges and the nomination of their replacements. In an order of 17 December 2018, these measures were granted45 so to suspend the precipitated retirement of a significant number of Supreme Court judges, including its President and two Presidents of Chambers.46 For the Court, failure to ensure, pending delivery of the final judgment, the independence of the Supreme Court under the application of the provisions of national legislation at issue would cause serious damage to the EU legal order and its underlying values, as well as to the rights that individuals derive from EU law. Moreover, because of the authority of the decisions of the Supreme Court over the lower Polish courts, a failure to ensure the independence of the previous is likely to undermine the trust of the Member States and their courts in the Polish legal system and, as a result, in that state’s observance of the rule of law. Member States could thus be inclined no to recognise and enforce judicial decisions made by the Polish courts, which is likely to cause serious and irreparable damage to EU law. 42 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 43 Case C-192/18 Commission v Poland (pending). 44 Case C-619/18 Commission v Poland EU:C:2019:531. 45 Order of 17 December 2018 in Case C-619/18 R Commission/Poland confirming the provisional order of the Court’s Vice President of 19 October 2018 EU:C:2018:852. 46 According to the provisional order of 19 October 2018, that fact, coupled with the increase, in parallel, of the number of Supreme Court judges from 93 to 120 authorised by the President of the Republic of Poland, the publication of more than 44 Supreme Court vacancies, including the post formerly occupied by its First President, and the appointment by the President of the Republic of Poland of at least 27 new judges, entails a profound and immediate change in the composition of the Supreme Court, which is, moreover, likely to be extended by new appointments.

210  Marek Safjan and Dominik Düsterhaus These considerations, which underscore the inalienability of the rule of law in the Member States for the proper functioning of the EU legal order, have certainly been heard. Indeed, on the very day of the Court’s order, the Polish President signed a bill reversing the contentious amendments to the law on the Supreme Court, which the Parliament had adopted on 21 November 2018 following the interim measures hearing held in Luxembourg five days before. The Court’s final judgment of 24 June 2019 has confirmed the unlawfulness of these amendments.

B.  Preliminary References As regards the aforementioned Polish legislation, the ECJ has also been seised by both the Supreme47 and ordinary Polish courts.48 They notably seek to know whether the provisions on mandatory early retirement and disciplinary procedures are incompatible with, inter alia,49 Article 19(1)(2) TEU in conjunction with Articles 2 and 4(3)(3) TEU, Article 267(3) TFEU and Article 47 of the Charter. While we shall abstain from commenting on these pending cases, it is impossible not to mention them in this contribution for they have spurred unprecedented reactions by national authorities,50 which make us fear for their willingness to respect the Polish people’s overwhelming wish to stay in the EU – and thus remain EU citizens.51 In view of ­multiple assaults on the rule of law, it is indeed questionable whether this foundational value of EU law is still adhered to in Poland.52 As regards, specifically, the currently pending cases, on top of enquiries directed against the judges having referred them to the ECJ, the Polish Minister of Justice and Prosecutor General recently filed a request with the Polish Constitutional Court to declare Article 267 TFEU unconstitutional insofar as it allows national courts to ask questions concerning the structure and the organisation of the judiciary and the course of domestic proceedings. This endeavour obviously defies the very purpose of the judicial cooperation mechanism instaured by Article 267 TFEU. At the same time, the arguments presented to this effect, claiming the organisational autonomy of Member State judiciaries to be a domaine réservé beyond the reach of EU law are, from the perspective

47 Pending Cases C-522/18 ZUS, C-537/18 Krajowa Rada Sądownictwa, C-585/18 Krajowa Rada Sądownictwa and Others, C-624/18 CP, C-625/18 DO, and C-668/18 BP. 48 Pending Cases C-558/18 Miasto Łowicz, C-563/18 Prokuratura Okręgowa w Płocku, and C-623/18 Prokuratura Rejonowa w Słubicach. 49 The interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 is also sought. 50 See the account by L Pech and P Wachowiec, ‘1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part II)’ (Verfassungsblog 2019/1/17) verfassungsblog.de/1095-days-later-from-bad-to-worse-regarding -the-rule-of-law-in-poland-part-ii/, accessed 18 January 2018. 51 According to a representative poll undertaken by the Polish public opinion research center CBOS in 2018, 92% of the Polish population wants to remain in the EU. It is noteworthy in this respect that the ECJ considers EU citizenship to constitute one reason for not allowing a Member State to be forced to withdraw from the Union, Case C-621/18 Wightman and Others EU:C:2018:999. 52 See eg M Matczak, 10 Facts on Poland for the Consideration of the European Court of Justice, (Verfassungsblog 2018/5/13) verfassungsblog.de/10-facts-on-poland-for-the-consideration-of-the-european-court-of-justice/ accessed 18 January 2019.

The EU Citizens’ Right to have Rights and the Courts’ Duty to Protect it  211 of that law,53 not only erroneous, but also ineffective, for a judgment of the Constitutional court in this sense would have to be set aside by all national courts and tribunals,54 while at the same time being a matter for infringement action taken by the EU Commission. Indeed, as the ECJ has repeatedly held, national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law,55 that discretion being replaced by an obligation for courts of final instance,56 subject to certain exceptions recognised by the Court’s case law.57 A rule of domestic law cannot prevent a national court from using that discretion, or complying with that obligation.58 Both are an inherent part of the system of cooperation between the national courts and the Court of Justice established by Article 267 TFEU. In any case, the organisation and functioning of the national judiciaries are no domaine réservé of the Member States for they contribute their judicial systems for the sake of ensuring the effective application and enforcement of EU law.59 Whilst they establish and organise their judiciaries within their spheres of competence, it is for the Court of Justice to determine, when asked to do so under Article 267 TFEU, the EU law requirements in this connection, notably those stemming from Articles 19(1)(2) TEU and 47 CFR. As long as the courts and tribunals of a given Member State prove to be independent by using their discretion or complying with their obligation to seize the ECJ in respect of doubts as to their future independence in an evolving legal context, the necessary answers will be forthcoming. The same applies in the context of judicial cooperation in the Area of Freedom, Security and Justice, whenever requested courts and tribunals of other Member States entertain doubts as to the respect of fair trial rights in that first state.60 While it rightly mortifies national authorities to learn that their tampering with judicial independence is openly denounced by foreign courts, only the latter’s vigilance guarantees the respect of EU law under such circumstances.61

53 Furthermore, from a Polish Constitutional perspective, the request appears to be inadmissible and unfounded, see S Biernat and M Kawczyńska, ‘Though this be Madness, yet there’s Method in’t: Pitting the Polish Constitutional Tribunal against the Luxembourg Court’ (Verfassungsblog) verfassungsblog.de/ though-this-be-madness-yet-theres-method-int-the-application-of-the-prosecutor-general-to-the-polishconstitutional-tribunal-to-declare-the-preliminary-ruling-procedure-unconstitut/ accessed 26 October 2018. See also the judgment of the Polish Constitutional Tribunal of 11 May 2005 K 18/04 on the Accession Treaty in which the Tribunal expressely found the preliminary ruling mechanism to be in conformity with the Polish Constitution. 54 Case 106/77 Simmenthal EU:C:1978:49, para 22; Case C-213/89 Factortame e.a. EU:C:1990:257, para 20; Case C-409/06 Winner Wetten EU:C:2010:503, para 56; Case C-416/10 Križan EU:C:2013:8, para 71. 55 Case 166/73 Rheinmühlen-Düsseldorf EU:C:1974:3, para 3. 56 In this connection, the Court recently found a violation of EU law in the French Conseil d’Etats failure to make a reference under Article 267(3) TFEU, Case C-416/17 Commission/France EU:C:2018:811. 57 Case 77/83 Cilfit EU:C:1984:91. 58 Case 166/73 Rheinmühlen-Düsseldorf EU:C:1974:3, para 4; Joined Cases C-188/10 and C-189/10 Melki and Abdeli EU:C:2010:363, para 42; and Case C-173/09 Elchinov EU:C:2010:581, para 27. 59 K Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ (2007) CML Rev 1625, 1625. 60 On the obligation to refer in this situation see D Düsterhaus, ‘In the Court(s) We Trust – A Procedural S­ olution to the Mutual Trust Dilemma’ (2017) Freedom, Security and Justice: European Legal Studies, 26. 61 See notably Case C-216/18 PPU LM EU:C:2018:586. It should be noted that in this and other cases Polish judges have, upon request by their colleagues from other Member States, opined that there is a real risk of the right to an independent tribunal being violated.

212  Marek Safjan and Dominik Düsterhaus

V. Conclusion We have argued that the limited scope of EU law and the strict confines of its own jurisdiction do not keep the ECJ from successfully meeting unprecedented challenges. As long as it is still seised by national courts and tribunals as well as by the European Commission – or individual Member States62 – our Court will certainly continue to pursue its mission to preserve the rule of law by providing for solutions that fully respect the limits of EU powers. With specific regard to the EU citizens’ right to enjoy the rights which EU law has conferred upon them, we have insisted on its untapped normative potential for the purpose of scrutinising Member State action. In any case, infringements of Article 20(2) TFEU ­trigger the application of Article 47 of the Charter. At the same time, we have argued in favour of addressing systemic deficiencies affecting the rule of law in the Member States and the protection of individual rights under Article 19(1)(2) TFEU, rather than seeking solutions which would test the limits of EU law. Within the framework of the preliminary ruling procedure, the Court and the national judge jointly guarantee the rule of law and afford effective judicial protection as required by Articles 19(1) TEU and 47 of the Charter.63 Their roles are complementary insofar as the referring judge establishes the facts and the applicability of EU law in concreto and gets to adjudicate the case following the Court’s interpretation. Only in the unlikely event of that interpretation not being respected any more, or such failures not being challenged by infringement actions, would the Court eventually arrive at the procedural limits of its ­intervention and would EU citizens be deprived of their right to have rights under EU law.

62 We refer insofar to Art 259 TFEU. 63 See in detail M Safjan and D Düsterhaus, ‘A Union of Effective Judicial Protection’ (2014) 33 Oxford Yearbook of European Law 3.

15 From Daily Mail to Polbud: An ‘Ever-Changing’ Case Law on Cross-Border Mobility of Companies? KÜLLIKE JÜRIMÄE*

The cross-border mobility of companies has always been both a central and controversial area of European Union law. Due to the divergence of views between Member States and the variety of rules under national laws, full harmonisation of EU rules on company law in general and on cross-border mobility of companies1 in particular, has not yet become a reality.2 Thus, national rules continue to govern both the activity and the mobility of companies. In the field of private international law, Member States promote different factors providing a connection of a company to their national territories (‘connecting factors’). In essence, their rules are based either on the ‘real seat theory’ or on the ‘incorporation theory’. This implies that their national laws apply either to companies having their central management (real seat) or to companies having their registered office (incorporation) in the Member State concerned.3 Depending on the approach adopted, Member States’ company laws provide for various requirements with regard to the creation, functioning and dissolution of companies. In particular, companies incorporated in some Member States may freely, or on certain conditions, transfer their central administration to another Member State. By contrast, companies incorporated in some other Member States can only do so upon winding-up and reincorporation in another Member State. Yet, the application of diverging national legislations may create a potential conflict with the companies’ freedom of establishment under EU law. It is, indeed, common ground that * The views expressed in this article are strictly personal. This article is based on a speech given at the 21st ­European Company Law Conference, 3 September 2017, Tallinn (Estonia). This article is updated as at 12 December 2018. My special thanks to Freya Clausen for her invaluable help. As usual, all errors remain entirely my own. 1 See, eg SFG Rammeloo, ‘The 14th EC Company Law Directive on the Cross-Border Transfer of the Registered Office or Limited Liability Companies – Now or Never?’ (2008) 15 Maastricht Journal of European and Comparative Law 359; E Wymeersch, ‘Is a Directive on Corporate Mobility Needed?’ (2007) 8 European Business Organization Law Review 161. 2 But see European Parliament and Council Directive (EU) 2017/1132 of 14 June 2017 relating to certain aspects of company law (codification) [2017] OJ L169/46; Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) [2001] OJ L294/1; Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European cooperative society (SCE) [2003] OJ L207/1. 3 On these theories, see, in particular, P Paschalidis, Freedom of Establishment and Private International Law for Corporations (Oxford, Oxford University Press, 2012), chs 1–2.

214  Küllike Jürimäe companies formed in accordance with the law of a Member State benefit from a freedom of establishment under the Treaty provisions.4 The extent of this freedom was unclear in the past. It raised important questions before the Court of Justice (ECJ or the Court) and sparked heated debates among Member States, as well as in academic circles.5 Ever since its well-known judgment in the Daily Mail case,6 the ECJ has resolved a number of cross-border company mobility issues. The development of its case law led to the Polbud judgment.7 The earlier cases concerned only the transfer of business operations or the transfer of business operations as well as of the place of incorporation. By contrast, the Polbud case concerned a company incorporated in Poland, wishing to change its place of incorporation without relocating its business activities or, to put more simply, a company wishing to change ‘nationality’ or ‘legal clothes’. The Court ruled, in essence, that Polbud could rely on the FEU Treaty provisions on freedom of establishment in order to transfer its registered seat to Luxembourg while maintaining its real activities in Poland. The Court further held that Poland could not object to such a transfer by refusing to remove Polbud from the Polish commercial register without formal liquidation of that company. Freedom of establishment thus includes the right of a company to change the law which is applicable to it. In other words, the judgment in Polbud reflects a liberal and broad understanding of that freedom, which favours both the integration and full realisation of the internal market and companies’ freedom to operate on that market. Admittedly, the Court has come a long way from the narrow and conservative understanding of the scope of freedom of establishment underlying its judgment in the Daily Mail case, to a rather liberal approach in Polbud. However, I am persuaded that Polbud is in line with the Court’s prior case law in this field.8 Hence, while I do admit that, in its earlier judgments, the Court seemed to hesitate between a conservative and a more liberal approach to company mobility, I do not believe that the Court’s case law has been overly erratic or inconsistent. As Koen Lenaerts put it, the Court’s judgments should be read not individually but in a broader context of cases, given that the case law is built on a step-by-step basis.9 The case law on cross-border mobility is an excellent illustration of this approach. A retrospective overview of this case law demonstrates that, over the time, the Court has adopted a consistent and, in my opinion, convincing liberal interpretation of the scope of the Treaty provisions on freedom of establishment in the field of cross-border mobility of companies (section I). The decision in the Polbud case is the logical consequence of that case law (section II). It does not, however, eliminate all uncertainties (section III). 4 Art 49 TFEU, read in conjunction with Art 54 TFEU. 5 As illustrated by the 559 academic publications counted by Advocate General Kokott in the Court’s case law database: opinion on Polbud, fn 3. 6 Case 81/87 The Queen v Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust PLC EU:C:1988:456. 7 Case C-106/16 Polbud – Wykonawstwo sp. z o.o. EU:C:2017:804. 8 But see, eg, H-G Koppensteiner, ‘Rechtsformwechselnde Satzungssitzverlegung und Niederlassungsfreiheit – Überlegungen zur Polbud-Entscheidung des EuGH’ (2018) 32 Zeitschrift für österreichisches und europäisches Wirtschaftsrecht 181; O Mörsdorf, ‘Nun also doch! Die überraschende Umdeutung der Niederlassungsfreiheit zur Rechtswahlfreiheit durch den EuGH im Urteil Polbud’ (2017) 38 Zeitschrift für Wirtschaftsrecht, 2381. 9 K Lenaerts, ‘How the ECJ Thinks: A Study on Judicial Legitimacy’ (2013) 36 Fordham International Law ­Journal 1302, 1350–69. See, also, B Bertrand, ‘Les blocs de jurisprudence’ (2012) 48 Revue trimestrielle de droit européen 741. Against: JHH Weiler, ‘Epilogue: Judging the Judges – Apology and Critique’, in M Adams et al (eds), Judging Europe’s Judges. The Legitimacy of the Case Law of the European Court of Justice (Oxford, Hart, 2013) 235, 248–51.

From Daily Mail to Polbud  215

I.  The Scope of the Freedom of Establishment Prior to Polbud Before turning to Polbud, I shall give a brief overview of the Court’s case law on company mobility in this particular area. At the outset, I shall stress that this case law is grounded in a rather liberal interpretation of the freedom of establishment. Polbud confirms this liberal interpretation. In the latter case, the Court was confronted with a situation in which the Member State in which the company was initially incorporated refused to allow a crossborder company conversion with an attendant change of applicable law. For the sake of clarity, I will thus first examine the argument, according to which, under the Court’s case law, ‘outbound’ restrictions (imposed by the Member State in which the company is incorporated) are outside the scope of freedom of establishment. I will then turn to the question of cross-border company transformation.

A.  Transfer of Seat and ‘Outbound’ Restrictions The Court laid down the first stone of its interpretation of the freedom of establishment in a cross-border company mobility context in the Daily Mail case. One might conclude from Daily Mail that the Court granted immunity to ‘outbound’ obstacles imposed by the Member State of incorporation of a company, ie the ‘home Member State’. While the approach taken in this case was clearly at odds with the very liberal stance taken by the Court in several cases regarding ‘inbound’ obstacles (emanating from the host Member State),10 the Court further refined the approach it had taken in the Daily Mail case, and limited its scope.

i.  The Early Case Law: From Daily Mail to Centros, Überseering and Inspire Art Daily Mail was a company incorporated in the United Kingdom (UK). Its registered office was also in the UK. It wanted to transfer its central management and control – but not its place of incorporation – to the Netherlands, for the purpose of transferring tax residency to the latter. While UK company law allowed such a transfer, UK tax law required prior consent from the British tax authorities. The question referred to the Court was whether this requirement constituted an obstacle to the freedom of establishment. The Court ruled that, in the state of Community law applicable at the time of Daily Mail, the Treaty provisions on freedom of establishment did not confer on companies a right to transfer their central management and control to another Member State while retaining their status as companies incorporated under the legislation of the first Member State.11 Thus, the legislation at stake in the national proceedings fell outside the scope of the

10 Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen EU:C:1999:126; Case C-208/00 Überseering BV v Nordic Construction Company Baumanagement GmbH (NCC) EU:C:2002:632; Case C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd EU:C:2003:512. 11 Daily Mail, paras 24 and 25.

216  Küllike Jürimäe Treaty provisions on freedom of establishment. At first sight, it appeared that the Member State of incorporation was free to hinder a company incorporated under its national law from transferring business activities to another Member State. This meant that the Treaty did not vest companies with a right to move their business operations out of the state of incorporation. By contrast, in its judgment in the Centros case, the Court found that a company, formed in accordance with UK law, and which also had its registered office in the UK, could rely on the Treaty provisions on freedom of establishment in order to pursue all its economic activities in Denmark. The Court considered it was irrelevant that the company was formed in the UK merely for the purpose of (i) establishing itself in Denmark, where its main or even entire business was to be conducted, and (ii) of evading Danish legislation.12 The Court found that the refusal of the Danish Trade and Companies Board to register a Danish branch of Centros constituted an obstacle to the exercise of the freedom of establishment.13 That obstacle was not justified in the present case, since it was disproportionate.14 While a Member State is entitled to take measures to prevent its nationals from attempting to use the rights created by the Treaty in order to circumvent their national legislation, the Court stressed once again that the decision to form a company in the Member State whose rules of company law are the least restrictive and to set up branches in other Member States does not, in itself, constitute an abuse of the right of establishment.15 The Court followed a similarly liberal approach in Überseering and Inspire Art. Überseering was a company incorporated under Dutch law. Its registered office was also in the Netherlands. Its shares were sold to German nationals residing in Germany, where that company carried out its main activities. Under German law, as a company incorporated under Dutch law, Überseering did not have legal capacity in Germany and, consequently, could not bring legal proceedings in that Member State. Therefore, Überseering could not bring an action to court, unless it reincorporated under German law. In essence, the Court considered that freedom of establishment was applicable to such a situation.16 It held, on the merits of the case, that the requirement of reincorporation was ‘tantamount to an outright [and unjustifiable] negation of freedom of establishment’.17 Inspire Art was incorporated in the UK. It had no activity in the UK and traded exclusively in the Netherlands through its Dutch branch. The Dutch authorities requested that a statement that Inspire Art is a formally foreign company must be added to the Dutch branch’s registration in the commercial register. Such registration entailed a number of additional obligations related to the exercise of the business activities and the running of the company. Following, in substance, the reasoning in Centros, the Court held that the fact that Inspire Art was formed in the UK for the purpose of circumventing Dutch company law did not mean that the establishment of a branch in the Netherlands was not covered by freedom of establishment.18 The additional obligations imposed on ­companies,



12 Centros,

paras 17–18. paras 21–22. 14 ibid, paras 35 and 37. 15 ibid, paras 27 and 39. 16 Überseering, paras 73 and 76. 17 ibid, paras 81 and 93. 18 Inspire Art, para 98. 13 ibid,

From Daily Mail to Polbud  217 such as Inspire Art, constituted restrictions on that freedom,19 which might, however, be justified.20

ii.  Refining Daily Mail: Überseering, Cartesio and National Grid Indus Centros, Überseering and Inpire Art have been seen as contradicting the Court’s findings in Daily Mail. After all, these cases concerned situations in which, essentially, a company dissociated the location of its registered office in the Member State of incorporation and that of its economic activities and/or central management, which was situated in a different Member State. However, while, in Centros, Überseering and Inpire Art, the Court recognised that these companies enjoyed a right to invoke the freedom of establishment in order to challenge restrictions imposed on its activities in the (host) Member State, it granted immunity to restrictions imposed by the (home) Member State in Daily Mail (hereinafter the ‘Daily Mail immunity’). The Court drew this distinction between ‘inbound’ and ‘outbound’ restrictions in ­Überseering: Daily Mail only applied to incorporation requirements imposed by the home Member State,21 but not to similar requirements imposed by the host Member State.22 Such a distinction is, I agree, artificial,23 for it is common ground that the four fundamental freedoms cover not only restrictions imposed by the host Member State but also obstacles caused by the home Member State. With regard to the freedom of establishment, an obiter dictum in Daily Mail confirms that that freedom also applies to eventual restrictions imposed by the home Member State.24 However, those cases can and must be distinguished on other grounds. In Überseering, the Court further held that, in Daily Mail, it ‘confined itself to holding that the question whether a company formed in accordance with the legislation of one Member State could transfer its registered office or its actual centre of administration to another Member State without losing its legal personality under the law of the Member State of incorporation and, in certain circumstances, the rules relating to that transfer were determined by the national law in accordance with which the company had been incorporated’.25 In Cartesio and National Grid Indus, the Court went on to clarify that the Daily Mail immunity extends to the sole creation and persistence of the connecting factor required by the national law of incorporation for a company to retain the status of a company governed by that law despite the transfer of its real seat to another Member State.26 In other words, such immunity concerns situations in which the legal existence of a company under the law of the Member State of incorporation is called into question. Hence, ‘a constitutional

19 ibid, para 104. 20 ibid, para 142. 21 Überseering, para 62; Inspire Art, para 103. 22 See, eg, C Kersting and CP Schindler, ‘The ECJ’s Inspire Art Decision of 30 September 2003 and its Effects on Practice’ (2003) 4 German Law Journal 1277, 1282. 23 See, especially, W-G Ringe, ‘No Freedom of Emigration for Companies?’ (2005) 16 European Business Law Review 621. 24 Daily Mail, paras 16–17. 25 Überseering, para 70 (emphasis added). 26 Case C-210/06 CARTESIO Oktató és Szolgáltató bt EU:C:2008:723, paras 103–04, 107, 109–10; Case C‑371/10 National Grid Indus EU:C:2011:785, paras 31–32.

218  Küllike Jürimäe deficiency in the existence of a company under the law governing that constitution’, ie the situation in which a company does not fulfil all the requirements to be validly created under that law, ‘cannot be repaired by invoking the right of establishment’.27 For this reason, in my view, the Court could not follow Advocate General Maduro’s proposal to fully overrule the Daily Mail immunity.28 The refined Daily Mail immunity is the coherent consequence of the assumption that a company is a creature of law and that, lacking EU legislation,29 this law is the law of a Member State.30 This assumption is based on the Court’s interpretation of Article 54 TFEU: by placing on equal footing the registered office, the central administration and the principal place of business,31 that provision takes account of the wide variety of national legislations in regard to both the connecting factor required for the incorporation of a company and the possibility to subsequently modify that factor.32 Thus, it is impossible to consider that once created under the law of a Member State, a company is a living entity, vested with the ‘portable nationality’ of that Member State, and that it can freely transfer any of its activities and seats without changing its ‘nationality’.33 This reading of Article 54 TFEU might well not be the only one possible.34 However, it is in my view a satisfying and correct interpretation, ‘a token of wise judicial self-restraint’.35 I believe that the Court should not declare one of those factors compatible with the requirements of freedom of establishment and impose it on the Member States. Such a choice belongs, in my opinion, to the legislature.36 Thus, it is impossible to consider that the Court has condemned the real seat theory and opted for a more business-friendly theory of ­incorporation37 or that it should do so.38 The facts and findings in both Cartesio and National Grid Indus illustrate very well the conclusion that ‘outbound’ restrictions are not per se immune from EU freedom of establishment. In Cartesio, the transfer of the Hungarian company’s real seat to Italy broke the

27 C Timmermans, ‘Impact of EU Law on International Company Law’ (2010) 18 European Review of Private Law 549, 556. 28 Opinion in Cartesio, para 31. 29 Daily Mail, para 23. 30 ibid, para 19. 31 ibid, para 21. 32 ibid, para 20. 33 But see V Petronella, ‘The Cross-Border Transfer of the Seat after Cartesio and the Non-Portable Nationality of the Company’ (2010) 21 European Business Law Review 245, 265. See also FM Mucciarelli, ‘Company “Emigration” and EC Freedom of Establishment: Daily Mail revisited’ (2008) 9 European Business Organization Law Review 267, 297–98. 34 J Meeusen, ‘Polbud: new perspectives for corporate mobility in the internal market’, in B Hess (ed), Europa als Rechts- und Lebensraum: Liber amicorum für Christian Kohler zum 75. Geburtstag am 18. Juni 2018 (Bielefeld, Gieseking, 2018) 313, 322. 35 C Timmermans, ‘Impact of EU Law’ 554. 36 On the interplay between the Court and the EU legislator, see, eg, P Pescatore, ‘La carence du législateur communautaire et le devoir du juge’, in G Lücke et al (eds), Rechtsvergleichung, Europarecht und Staatenintegration: Gedächtnisschrift für Léontin-Jean Constantinesco (Cologne, Heymann, 1983) 559; A Iliopoulou-Penot, ‘Réflexions sur la codification de la jurisprudence par le législateur européen’, in B Bertrand et al (eds), L’identité du droit de l’Union européenne: Mélanges en l’honneur de Claude Blumann (Bruxelles, Bruylant, 2015) 187. 37 As some authors did after Centros, Überseering and Inspire Art. See, eg, E Vaccaro, ‘Transfer of Seat and ­Freedom of Establishment in European Company Law’ (2005) 16 European Business Law Review, 1349, 1354. 38 See, eg, J Borg-Barthet, ‘Free at last? Choice of Corporate Law in the EU following the Judgment in VALE’ (2013) 62 ICLQ 503, 505, 509.

From Daily Mail to Polbud  219 factor providing a connection to the company’s law of incorporation. Hence, the Court ruled that the legislation at stake, hindering Cartesio from transferring its real seat to Italy while retaining its status as a company governed by Hungarian law, fell outside the scope of the Treaty provisions on freedom of establishment.39 Conversely, in National Grid Indus, the Court found that these Treaty provisions encompassed legislation issued by the home Member State, which confined itself to attaching tax consequences, for companies incorporated under national law, to a transfer of the place of management between Member States.40 Under UK company law, Daily Mail could, at the time, legally transfer its real seat to another Member State while retaining its status as a company governed by UK law and the challenged obstacle stemmed from UK tax law. To that end, it is possible to conclude that the Court has not only refined the scope of Daily Mail but has implicitly overruled it.

iii.  Interim Conclusion Prior to Polbud, the Court’s case law on the transfer of the real seat and on the transfer of both the real seat and the registered office was founded on the following two premises. First of all, companies are, as the Court famously held in Daily Mail, ‘creatures of national law’41 in the sense that their legal existence depends on their valid creation and incorporation under the law of one Member State. Their legal existence, as well as their legal ‘survival’, is, therefore, a matter of national law of the Member State of incorporation, which falls outside the scope of freedom of establishment (Daily Mail, Überseering, Cartesio, National Grid Indus). Secondly, legally created companies enjoy full freedom of establishment, including the freedom to carry out cross-border transfers. In principle, this freedom can be relied upon vis-à-vis both the Member State of incorporation (National Grid Indus) and the host Member State (Centros, Überseering, Inspire Art). Regarding the host Member State, this assumption requires, to a certain extent, the mutual recognition of companies that are validly incorporated under the law of another Member State. Such recognition is a ‘necessary precondition for the exercise of the freedom of establishment’.42 Regarding the Member State of incorporation, the Court also addressed the issue of company transformation, by means of mergers and conversions, in its case law prior to case Polbud.

B.  Company Transformation: SEVIC Systems, Cartesio’s Obiter Dictum and VALE Cross-border company transformation operations are, in principle, subject to the FEU Treaty provisions on freedom of establishment. The Court laid down such a principle in SEVIC Systems, with regard to cross-border mergers.43



39 Cartesio,

paras 103, 123–24. Grid Indus, paras 31–32. 41 Daily Mail, para 19. 42 Überseering, para 59. 43 Case C‑411/03 SEVIC Systems EU:C:2005:762, para 19. 40 National

220  Küllike Jürimäe With regard to the cross-border conversion of a company, the Court found, in a muchdiscussed obiter dictum in the Cartesio judgment,44 that, while the transfer of a company’s seat with no change with regard to the law which governs that company is immune from the freedom of establishment,45 ‘the situation where a company governed by the law of one Member State moves to another Member State with an attendant change as regards the national law applicable, since in the latter situation the company is converted into a form of company which is governed by the law of the Member State to which it moved’ falls under the scope of that freedom. Thus, the Member State of incorporation cannot, ‘by requiring the winding-up or liquidation of the company … prevent that company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so’.46 The ratio legis of this obiter dictum is that the purpose of such a conversion is ‘to disconnect completely’ from the national law applicable to the initial incorporation, so that the conversion amounts to a ‘form of cross-border establishment’.47 Prior to Polbud, the Court had further clarified, in essence, that this included a crossborder conversion which implied the transfer of both the real seat and the registered seat from the Member State of incorporation to another Member State, as well as a change of the law applicable to the company. In the case at stake, the law of the host Member State, in which the company wanted to reincorporate, enabled national companies to convert, but did not allow companies governed by laws of another Member State to do so.48 However, Polbud concerned a situation in which a company wanted to transfer its registered office alone with an attendant change of law. Thus, Polbud gave the Court the opportunity to further clarify the scope of Cartesio’s obiter dictum.

II.  The Scope of the Freedom of Establishment after Polbud At the outset, it must be recalled that the Court’s ruling is based on the premise that Polbud intended to transfer its registered office alone to Luxembourg. It did not intend to also transfer its business activities.49 Luxembourgish law allowed incorporation of a company having only its registered office, but not its real seat, in Luxembourg.50 Since those facts and that legal framework were presented by the referring court in the order for a preliminary reference, it was not for the Court to question this premise.51

44 On the use of obiter dicta in the Court’s case law, see, in particular, C Charrier, ‘L’obiter dictum dans la ­jurisprudence de la Cour de justice des Communautés européennes’ (1998) 34 Cahiers de droit européen 79. 45 Cartesio, paras 109–10. 46 ibid, paras 112–14. 47 C Timmermans, ‘Impact of EU Law’ 558. 48 Case C-378/10 VALE Építési kft. EU:C:2012:440, para 33. 49 But see Polbud’s argument: Polbud, para 26. 50 But see I Corbisier, ‘Arrêt Polbud de la CJUE: de la créature de droit national au sujet de droit de l’Union européenne’ (2018) 3 Revue Pratique des Sociétés 153, para 5; M Menjucq, ‘La Cour de justice libéralise la transformation transfrontalière des sociétés’ (2018) 34 La semaine juridique – Entreprise et affaires 24, 27. 51 See, to that effect, Polbud, paras 27–28.

From Daily Mail to Polbud  221 In Polbud, the Court confirmed its liberal interpretation of the Treaty provisions on freedom of establishment and further broadened the scope of that freedom. It ruled that ‘freedom of establishment is applicable to the transfer of the registered office of a company formed in accordance with the law of one Member State to the territory of another Member State, for the purposes of its conversion, in accordance with the conditions imposed by the legislation of the other Member State, into a company incorporated under the law of the latter Member State, when there is no change in the location of the real head office of that company’.52 In other words, the Court clarified that freedom of establishment encompasses the freedom to change incorporation and, thus, applicable law, provided that the law of the host Member State (where the company reincorporates) so allows. This finding is consistent with the earlier case law and the Court’s liberal understanding of freedom of establishment, for five main reasons. First, as previously mentioned, the mere fact that the Polbud case raised the issue of an ‘outbound’ restriction, ie Poland refusing to remove Polbud from the Polish register without prior liquidation and winding-up of that company, is not sufficient to consider that the situation at stake falls under the Daily Mail immunity. That immunity is, indeed, limited to situations in which a company claims to retain its status as a company governed by the law of its home Member State, while transferring its activities to another Member State. Yet, while Polbud dissociated the place of its registered office, which it aimed at transferring to Luxembourg, and the place of its real seat, which it kept in Poland, it did not claim to retain its status as a Polish company. On the contrary, Polbud intended to change the law applicable to it. Thus, this operation inevitably led to the rupture of the connecting factor between Polbud and Poland, but also entailed a new incorporation under the laws of another Member State based on the latter’s connecting factor. As mentioned above, the Court’s case law on cross-border transfers presupposes a certain amount of mutual recognition of companies incorporated under the law of another Member State. With Polbud, the Court clarified that this idea extends to companies to be validly reincorporated under the law of Member State other than the Member State of initial incorporation. Put differently, as a scholar interestingly noted, the Court ‘inverted’ the idea of mutual recognition by imposing on the Member State of the initial incorporation an obligation to recognise the reincorporation of its company in another Member State.53 Second, Polbud aimed at changing the law applicable to it, while retaining its business activities in Poland. Had the Court excluded Polbud’s situation from the scope of freedom of establishment, the factual outcome would have been the following. Under Polish law, Polbud would have had to go through the costly and time-consuming process of ­liquidation54 and winding-up. Once removed from the Polish register, a new company could seek incorporation in another Member State, which applies the theory of incorporation. Upon establishment of its registered office and incorporation in the latter, Polbud, as a company newly formed in accordance with the law of a Member State, could carry out

52 ibid, para 44. 53 M Ho-Dac, ‘L’affirmation d’un droit au transfert intra-européen du siège statutaire avec changement de loi applicable: une nouvelle donne pour la reconnaissance mutuelle des sociétés dans l’Union?’ (2017) 23 Revue des affaires européennes 727, 734–37. 54 Polbud, para 50.

222  Küllike Jürimäe its entire business activities in Poland through a branch, by virtue of the Court’s findings in Centros. In other words, an eventual exclusion of Polbud’s situation from the scope of freedom of establishment would have had no significant impact on the possibility of Polbud carrying out its entire business activities in Poland while being governed by Luxembourgish law. However, the way to achieve that goal would have been more difficult for Polbud. Thus, it would have been artificial to distinguish the Centros and Polbud cases with regard to the scope of freedom of establishment. The Court did not draw such a distinction.55 Third, the fact that, in VALE, the Court held that cross-border conversions ‘presuppose the consecutive application of two national laws’,56 ie the law of the Member State of initial incorporation and the law of that of reincorporation, does not alter the findings in Polbud.57 Nothing in VALE indicates that the Court intended, by that statement, to grant immunity to the law of the Member State of initial incorporation. On the contrary, the foregoing considerations rule out such immunity, where the conversion entails change in applicable law and where reincorporation is possible under the law of the host Member State. Furthermore, Polbud does not contradict that statement as it reckons that a Member State might justify an obstacle caused by its domestic law to freedom of establishment. Fourth, Cartesio’s obiter dictum constituted another valid precedent in favour of the Court’s ruling in Polbud. It is true that Cartesio concerned a company, which wanted to transfer both its registered office and its real seat to another Member State, while retaining its status as a company governed by the law of its Member State of incorporation. It is equally true that the Court’s obiter dictum was open to different interpretations. The Court distinguished the transfer of a company’s seat with no change of law from a cross-border conversion, ie a situation where a company ‘moves to another Member State with an attendant change as regards the national law applicable’.58 On one hand, one could legitimately claim that due to the factual circumstances of Cartesio the distinction was valid only in so far as the cross-border conversion concerned should imply the transfer of both the registered office and the real seat (as in Cartesio).59 Thus, a situation such as that of Polbud would remain outside the scope of freedom of establishment. On the other hand, the obiter dictum was phrased in such a broad manner that it could validly encompass a situation such as that of Polbud.60 In Polbud, the Court chose the second interpretation of Cartesio’s obiter dictum.61 Rather than being inconsistent with Cartesio, Polbud is a clarification of the latter. Fifth, I would like to address the argument based on the very definition of the notion of ‘establishment’. According to that argument put forward by some scholars62 and by 55 ibid, para 38. 56 VALE, para 37. 57 But see AG Kokott’s opinion in Polbud, para 42. 58 Cartesio, para 111. 59 Opinion of AG Kokott in Polbud, para 40. 60 See also J Meeusen, ‘Freedom of establishment, conflict of laws and the transfer of a company’s registered office: towards full cross-border corporate mobility in the internal market?’ (2017) 13 Journal of Private ­International Law 294, 302. But see, ibid, 313–21. 61 Cartesio, para 43. 62 See, in particular, J Meeusen, ‘Freedom of establishment’, 313–20 (with further references). See also, W Bayer and J Schmidt, ‘Grenzüberschreitende Mobilität von Gesellschaften: Formwechsel durch isolierte Satzungssitzungsverlegung’ (2017) 38 Zeitschrift für Wirtschaftsrecht 2225, 2228–29, quoted by I Corbisier, ‘Arrêt “Polbud”: la consécration de la possibilité d’un principe inconditionnel de libre mobilité’ (2018) 26 Journal de droit européen 135, 136 and fn 13.

From Daily Mail to Polbud  223 Advocate General Kokott in her opinion in Polbud, the notion of establishment involves the actual pursuit of an economic activity in another Member State through a fixed establishment, for an indefinite period.63 In the field of company mobility, in the judgments in the Cadbury Schweppes and VALE cases,64 the Court held that the notion of establishment presupposes an actual establishment in the host Member State and the pursuit of genuine economic activity in that state or, at least, the intention to effect such an establishment.65 Consequently, according to this argument, the freedom of establishment does not cover a cross-border conversion, when that conversion does not imply the actual establishment of the company concerned in the host Member State. Thus, unless Polbud were to transfer its actual business activities to Luxembourg, the mere transfer of its registered seat to that Member State with a view of changing the applicable law would not fall under the material scope of freedom of establishment. This argument is serious, but not decisive in my view. First of all, according to the Factortame ruling, the application of the rules on freedom of establishment is subject to the actual pursuit of economic activity in ‘another Member State’.66 In other words, establishment requires, in particular, the pursuit of an economic activity and, as is the case for all fundamental freedoms,67 a cross-border element. Both these requirements are met in a situation where a company, such as Polbud, dissociates its registered seat in one Member State from the actual pursuit of genuine economic activity ‘in another Member’. In these circumstances, a narrow interpretation of the scope of freedom of establishment, based on Cadbury Schweppes and VALE, appears questionable. In those cases, the Court further specified that such a cross-border element presupposes the actual pursuit of genuine economic activity ‘in the host Member State’. However, the Court made that statement in the context of the application of the Treaty provisions, rather than in the context of the definition of the scope thereof. In any event, for the sake of consistency with the Centros line of case law, which does not refer to such a requirement, such a restrictive approach was excluded. Finally, the solution adopted in Polbud is coherent with the Member States’ free choice of the connecting factor required for a company to establish itself under their laws.68 The Court’s approach in the Polbud case mirrors all these considerations. Critics fear, however, that the Court has taken a too liberal stance on cross-border company mobility, thus allowing ‘letterbox’ companies to take undue advantage of the freedom of establishment and to circumvent national rules in the public interest. In my view, these fears are unjustified. First of all, the Court struck a satisfying balance between, on the one hand, a broad definition of freedom of establishment and, on the other, the much needed possibility for Member States to secure public interests. Thus, Member States may justify, on a case-by-case basis, eventual obstacles to cross-border transfers. In particular, in Polbud the Court held, once again, that Member States can adopt proportionate measures to protect the 63 Case C-221/89 The Queen v Secretary of State for Transport, ex parte Factortame EU:C:1991:320, para 20; Case C-246/89, Commission v United Kingdom EU:C:1991:375, para 21. 64 Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas EU:C:2006:544, para 54; VALE, para 34. 65 Opinion in Polbud, paras 33–36. 66 Factortame, para 20. 67 On the requirement of a cross-border element and purely internal situations, see, eg, E Dubout, ‘Voyage en eaux troubles: vers une épuration des situations “purement” internes?’ (2016) 22 Revue des affaires européennes 679. 68 See, to the effect of that last argument, IM Barsan, ‘Que reste-t-il du critère du siege social reel après l’arrêt Polbud?’ (2018) 28 Europe 6, 9–10.

224  Küllike Jürimäe interests of creditors, minority shareholders and employees69 as well as in order to prevent and/or penalise fraud.70 In so far as the Court might be criticised for not having given more precise guidance in this regard, I observe that, in light of the circumstances of the Polbud case and the questions referred to the Court, the Court fully answered all those questions. Yet, the national rule at stake, which made removal from the commercial register subject to prior liquidation of the company, was clearly disproportionate. Future cases might well provide the Court with more appropriate opportunities to further clarify those issues.

III.  Future Challenges Undoubtedly, Polbud is an important contribution to the full realisation of the freedom of establishment of companies. It put an end to a long-running controversy regarding the question of whether that freedom of establishment included the freedom not only to choose the law of incorporation upon creation of a company, but also to change that law in the course of a company’s ‘life’. Following the liberal spirit of earlier decisions such as Centros and Inspire Art, the Court responded in the affirmative. While this is an important contribution, all issues have not yet been resolved. As a matter of fact, the Court has to date decided on important issues relating to cross-border movement of companies. In particular, it has shaped the scope of freedom of establishment in such context. However, while the Court aims at ensuring the general consistency of its case law, it can only decide on the issues brought before it under the preliminary reference procedure or, eventually, under infringement proceedings. Furthermore, where a situation falls under the scope of the Treaty provisions on freedom of establishment, the application of these provisions requires, in every case, an assessment of the consistency of the national rules with those provisions. It must be examined whether those rules create an obstacle to the freedom of establishment and, if that is the case, whether such obstacle is justified and proportionate with regard to the alleged objectives in the general interest. Yet, a case-by-case assessment of the consistency of specific national rules with the requirements of the Treaty provisions does not provide companies with the much needed legal certainty and predictability of the application of national rules regarding cross-border mobility.71 It is equally true that, in the absence of harmonisation, the risk of a ‘European Delaware’ and regulatory competition between Member States is higher. The question of whether such competition is to be feared, as it leads to a race to the bottom, or welcomed, as it enhances company mobility, might be left unanswered.72

69 Polbud, paras 54–55. 70 ibid, para 61. 71 See also M Szydło, ‘Cross-border conversion of companies under freedom of establishment: Polbud and beyond’ 2018 (55) CML Rev 1549, 1570. 72 See, in particular, C Kersting, ‘Corporate Choice of Law – A Comparison of the United States and European Systems and a Proposal for a European Directive’ (2002) 28 Brooklyn Journal of International Law 1, 11–15, 38–42; C Kirchner, RW Painter and W Kaal, ‘Regulatory Competition in EU Corporate Law After Inspire Art: Unbundling Delaware’s Product for Europe’ (2004) University of Illinois College of Law. Law and Economics Working Papers, Paper 17.

From Daily Mail to Polbud  225 It remains that, as a judicial body, the Court lacks the power to establish a proper set of precise, clear and detailed rules governing all relevant issues relating to cross-border movement of companies. It is thus the legislator who should fill that gap and adopt a muchneeded EU legal instrument on cross-border company mobility with a view, in particular, to the question of the transfer of seat. Only such an instrument can allow companies to predict the applicable rules and constraints with regards to an eventual transfer. In this context, one can only welcome the recent Commission proposal for a directive of the ­European Parliament and of the Council amending Directive 2017/1132 as regards cross-border conversions, mergers and divisions.73



73 Proposal

dated 25 April 2018, COM(2018) 241 final.

226

16 Free Movement of Goods in a Changing Union The Evolving Relationship Between Fundamental Rights, Grounds of Justification and Mandatory Requirements HEIDI KAILA*

I. Introduction The Treaty establishing the European Economic Community (EEC), signed in Rome in 1957,1 provided for the creation of a common market based on the free movement of goods, workers, services and capital. While its goal was to promote economic and social progress and to improve living and working conditions in the signatory states, the principles and measures agreed upon were mainly economic and technical. In the light of changes in ­society, the original treaty provisions have gradually been supplemented. The common market has been succeeded by the internal market, an objective of which is to promote the wellbeing of individuals. Today, in Allan Rosas’ words,2 the internal market combines elements of a socio-economic system or, a ‘highly competitive social market economy’,3 including elements of social justice, environmental protection and respect for human rights. The general treaty objectives are amplified and implemented in sectoral treaty provisions. In line with the principle of mainstreaming, several important interests shall be taken into account transversally in defining and implementing the European Union’s4 policies and activities. As integration has advanced towards a political union, questions of legitimacy have required growing attention. At present, the EU Treaties5 and the Charter of F ­ undamental Rights

* The views expressed in this contribution are my own and do not represent the views of my employer. I am indebted to Liina Teras for her valuable suggestions and comments on a previous draft. 1 The Treaty entered into force on 1 January 1958. 2 See A Rosas and L Armati, EU Constitutional Law: An Introduction (Oxford, Hart Publishing, 2018) 205–06. 3 Art 3(3) TEU. 4 The terms Union and EU are used without distinction being made between different phases of European ­integration. The numbering of the Treaty provisions, adopted by the Lisbon Treaty on 1 December 2009, is used also when referring to pre-Lisbon case law. 5 Arts 2 and 6 TEU.

228  Heidi Kaila of the European Union (Charter)6 confirm that the EU is founded on values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The internal market is no longer just a market to be regulated; it also has values to be expressed.7 The EU has also been reshaped by its consecutive enlargements. This evolution is reflected in the application and interpretation of the principle of free movement of goods. At the core of the removal of restrictions to intra-EU trade lies the prohibition of measures having an equivalent effect to quantitative restrictions, imposed by Article 34 TFEU.8 When crossing national borders, goods are also likely to cross value borders.9 In the absence of harmonisation measures, national restrictions may be justified if they pursue a legitimate public interest and are proportionate to it. Weighing the free movement of goods in relation to the need to protect such interests gives rise to difficult legal assessments. The interpretations adopted by the Court of Justice (Court) have played a key role in this regard. Admittedly, finding a proper balance is also an economic, political or ideological question. After a brief overview of the prohibition of measures having an equivalent effect, this article focuses on the complex relationship between the main regimes permitting to justify such measures. In legal terms, the Member States may rely on the protection of fundamental rights, on the grounds of justification foreseen by Article 36 TFEU10 and on the mandatory requirements recognised in the Cassis de Dijon case law.11 From a thematic point of view, the underlying interests relate to the values and proper functioning of society, to the rights, security, safety, health and wellbeing of individuals, to environmental protection and to the fairness of intra-EU trade. The demarcation lines between the justification regimes are rather vague and several overlaps exist between the public interests protected thereunder. As the legal conditions for applying each of the regimes differ, complexities undermining legal certainty emerge. Moreover, applying the principle of proportionality is not straightforward.12 For presentational purposes, the regimes are examined as being parallel to one another. From the angle of legal theory, one could claim that the protection of fundamental rights ranks higher than the justifications and derogations under EU law, and that derogating from the free movement of goods does not necessarily equal to balancing different principles and interests in relation to one another. As to the mandatory requirements, according to some legal authors, they should not be considered as justifications but rather as indications that the contested measure does not constitute a measure having an 6 [2016] OJ C 202/389. 7 Opinion of AG Bot in Case C-34/10 Brüstle EU:C:2011:138, para 46. 8 Originally Art 30 EEC. 9 Nic Shuibhne, Niamh, ‘Margins of Appreciation: National Values, Fundamental Rights and EC Free Movement Law’ (2009) 34 EL Rev (2) 231. 10 Originally Art 36 EEC. 11 Case 120/78 Rewe-Zentral (‘Cassis de Dijon’) EU:C:1979:42. 12 See B Brunessen, ‘Que reste-t-il des exigences impératives d’intérêt général?’ (2012) 1 Europe 1–8; V Hatzopoulos, ‘Exigences essentielles, impératives ou impérieuses; une théorie, des théories ou pas de théorie du tout’ (1998) 2 Revue trimestrielle de droit européen 191–236; V Hatzopoulos, ‘La justification des atteintes aux libertés de circulation: cadre méthodologique et spécificités matérielles’ (2013) 1 College of Europe, Research Paper in Law, Brugge; E Spaventa, ‘On Discrimination and The Theory of Mandatory Requirements’ (2000) 3 The Cambridge Yearbook of European Legal Studies 463; C Barnard, ‘Derogations, Justifications and the Four Freedoms: Is State Interest Really Protected?’ in C Barnard and O Odudu (eds) The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 273–306.

Free Movement of Goods in a Changing Union  229 equivalent effect.13 One could also claim that as a reflection of the rule of reason such requirements should be appraised as general principles of EU law. Nonetheless, the proposed method does not seem to be in contradiction with the relevant case law. In order to provide a more complete picture, guidance is sought from the case law applicable to other internal market freedoms. A certain approximation of the applicable principles can be observed. At the same time, the freedoms do not necessarily play out in the same way, as the scope and content of the provisions in the EU Treaties and in EU ­legislation vary.14 Inspiration is also drawn from the application and interpretation of various EU provisions governing interests similar to those invoked by Member States.

II.  Measures Having an Equivalent Effect to Quantitative Restrictions Article 34 TFEU prohibits ‘measures having an equivalent effect to quantitative restrictions’ without defining the concept. Yet, its interpretation affects the effective operation of the internal market and the Member States’ margin to regulate trade-related issues. The more widely the concept is defined, the more pressing becomes the need to acknowledge justifications to protect public interests. As a preliminary remark, applying Article 34 TFEU seems to be more complex today than in the early years of integration. Firstly, the relationship between the free movement of goods and notably the freedom to provide services raises difficult questions. The evolution of digital technologies has not made the demarcation line any clearer. Secondly, assessing whether a measure can be attributed to a Member State has become more delicate as a result of delegation of public powers to different types of semi-public bodies and quasiautonomous governmental organisations.15 Thirdly, contrary to EU legislation, Article 34 TFEU is not applicable in situations which are purely internal to a Member State. In an increasingly complex world, it is not always easy to establish whether all the facts of a case are confined to a single state.16 Finally, before the Court examines the contested measure under that provision, it analyses to which extent the national legislations have been harmonised in that particular area. When an area has been harmonised, the measure is assessed directly in relation to EU legislation. The important interests at stake, such as the protection of health, safety, environment, consumers and fundamental rights, ought to have been taken into account in that act, in accordance with the EU Treaties17 and the Charter. 13 A Mattera, ‘L’article 30 du traité CEE, la jurisprudence « Cassis de Dijon » et le principe de la reconnaissance mutuelle, les instruments au service d’une Communauté plus respectueuse des diversités nationales’ (1992) 4 Revue du Marché Unique européen 3–71. 14 A Rosas, ‘Introduction’ in P Koutrakos, N Nic Shuibhne and P Syrpis (eds) Exceptions from EU Free Movement Law Derogation, Justification and Proportionality (Oxford, Hart Publishing, 2016) v. 15 See P Oliver (Aut and Ed), Oliver on Free Movement of Goods in the European Union (Oxford, Hart Publishing, 2010) 57 and O Odudu, ‘The Private/Public Distinction in EU Internal Market Law’ (2010) 4 Revue trimestrielle de droit européen 825. 16 Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez EU:C:2010:300; Case C-268/15 Ullens de Schooten EU:C:2016:439, paras 50–53. 17 See in particular Art 114 TFEU. See also S Weatherill, ‘The Competence to Harmonise and its Limits’ in P Koutrakos and J Snell (eds) Research Handbook on The Law of the EU’s Internal Market (Cheltenham, Edward Elgar Publishing, 2017).

230  Heidi Kaila However, defining the extent of harmonisation is not always obvious.18 Further, in the case of partial harmonisation, the Member States usually enjoy a margin to maintain or to adopt stricter measures. When using this margin, they shall respect the principle of free movement of goods. As the volume of EU legislation has grown steadily, new grey areas have appeared. Suffice to say that the legal framework governing the free movement of goods has become increasingly fragmented. At the same time, unlike in newer areas of EU law, a wellestablished case law to rely on exists. In the 1960s, it was claimed that Article 34 TFEU only prohibited directly discriminatory measures. The European Commission refuted the narrow interpretation in its Directive 70/50/EEC,19 considering that certain measures applicable without distinction to both domestic and imported products constitute measures having an equivalent effect. This approach was consistent, as indistinctly applicable measures can be indirectly discriminatory and as the Member States tended to have recourse to disguised forms of protectionism. In addition, the adoption of EU legislation did not advance as expected. The Court followed this interpretation in Dassonville.20 It stated in broad terms that ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade must be considered to be [measures having an equivalent effect].’ Accordingly, all national rules liable to have restrictive effects on trade, even indistinctly applicable measures having no connection with imports, would constitute such measures. This case law was nuanced in Cassis de Dijon. On the one hand, the Court considered that obstacles to the free movement of goods, which are a consequence of applying to goods coming from other Member States where they are lawfully manufactured and marketed national rules or standards, constitute measures having an equivalent effect. In line with the principle of mutual recognition, such products shall in principle be admitted to the territory of the importing Member State.21 On the other hand, the Court recognised the possibility to rely on mandatory requirements. As it soon became apparent that traders invoked Article 34 TFEU as a means of challenging any rules whose effect was to limit their commercial freedom, the Court reconsidered its case law in Keck and Mithouard.22 According to the ruling, national provisions restricting or prohibiting certain selling arrangements that, first, apply to all relevant traders operating within the national territory, and, second, affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States are not to be considered as measures having an equivalent effect. Such arrangements are not by nature such as to prevent or impede the market access of products originating from other Member States. Lately, notably in Commission v Italy,23 concerning national measures governing the use of a product, the Court has put emphasis on the market access. The underlying philosophy is that ‘the economic freedoms are about unrestricted movement rather than

18 See Case C-639/11 Commission v Poland EU:C:2014:173. 19 [1970] OJ L13/29. 20 Case 8/74 Dassonville EU:C:1974:82, para 5. 21 See Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC, [2008] OJ L 218/21. 22 Joined Cases C-267/91 and C-268/91 Keck and Mithouard EU:C:1993:905, para 16. 23 Case 110/05 Commission v Italy EU:C:2009:66.

Free Movement of Goods in a Changing Union  231 any value ­judgement championing or condemning specific commercial or other practices or behaviour’.24 This approach may imply that less attention needs to be paid to the question of indirect discrimination. On the other hand, measures restricting market access are often indirectly discriminatory.25

III.  Justification Regimes Safeguarding legitimate public interests can become relevant at different stages of the life cycle of a good from its manufacturing, storage and transport to its marketing, sale, use, and finally, to its treatment as a waste. The subjects assumed to require protection might include employees involved in the production, storage or marketing process of the product, consumers as addressees of marketing measures or as end-users, the business partners and competitors of the producer, seller and advertiser, as well as third parties. Article 36 TFEU stands in the Treaty in its original wording and foresees that restrictions may be justified on grounds of ‘public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property’. The national restrictions shall not constitute a means of arbitrary discrimination or a disguised restriction on intra-EU trade. In other words, those measures shall not be diverted from their proper purpose.26 The article was inspired by Article XX of the General Agreement on Tariffs and Trade (GATT), signed in 1947. As a derogation, it is to be interpreted strictly.27 Similar but shorter lists of grounds of justification are provided in the provisions of the FEU Treaty governing the other internal market freedoms.28 The Cassis de Dijon ruling provides that, in the absence of harmonisation, national restrictions resulting from disparities in the national laws relating to the marketing of a product must be accepted in so far as they are necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. The ruling reflects the evolution of values in society and a ‘rule of reason’ type of reasoning. As the word ‘in particular’ indicates, the list of such requirements is open-ended.29 The case law has evolved over time hand in hand with a growing plurality of values. Importantly, the judge-made mandatory requirements do not constitute an extension of the grounds of justification. Such requirements can be relied on only when the contested measure is indistinctly applicable. Nevertheless, the Court has shown a certain degree of flexibility in this respect. The Court has also recognised the possibility to invoke similar

24 Rosas and Armati (n 2), 212–13. 25 See J Snell, ‘The Notion of Market Access: A Concept or a Slogan?’ (2010) 47 CML Rev 470–72. 26 Case 34/79 Henn and Darby EU:C:1979:295, para 21. 27 Case 29/72 Marimex EU:C:1972:126. This reading is corroborated by the preparatory works of the Treaty of Rome. See N Stoffel Vallotton, ‘Interpretacion “estricta” o “restrictiva” del articulo 36 del T.CE? La problematica de las “exigencias imperativas”’ (1996) 23 Revista de instituciones Europeas 418–19. 28 Arts 45, 52, 62 and 65 TFEU. 29 Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on 20 February 1979 in Case 120/78 ('Cassis de Dijon') [1980] OJ C 256/2.

232  Heidi Kaila requirements as regards the other internal market freedoms. Some terminological variations can be observed.30 Simultaneously, the protection of fundamental rights has become an integral part of EU law. Such rights constitute general principles of EU law. The protection thereof is a legitimate interest which, in principle, justifies a restriction to the free movement.31 In its case law, the Court has for decades drawn inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The European Convention on Human Rights (ECHR) has had special significance in that respect.32 Today, the EU’s commitment to the protection of fundamental rights is codified in the EU Treaties33 and is reaffirmed by the Charter. The Charter was proclaimed as a p ­ olitical declaration in Nice on 7 December 2000. With the entry into force of the Treaty of Lisbon on 1 December 2009, it became legally binding. The Charter reaffirms the civil, political, economic and social rights of European citizens and persons residing legally within the EU. Some of the dispositions concern rights and others principles. The Act applies to the EU institutions and has to be respected and observed by the Member States under the conditions laid down in its Article 51, ie ‘only when they are implementing Union law’. According to the Court, the sentence refers to situations governed by EU law. Consequently, situations where the national legislation falls within the scope of that law are covered by it.34 The use of exceptions by the Member States in order to justify restrictions is to be regarded as ‘implementing Union law’.35 It has been claimed that this interpretation casts the net of EU fundamental rights protection rather wide.36 The Charter’s application by the Member States also raises questions on the overlapping levels of protection under EU law, national constitutional law and the ECHR, and the level of EU fundamental rights protection.37 The Charter does not extend the field of application of EU law beyond the powers of the EU.38 The Charter contains itself special39 and general40 provisions on derogations.41 Any limitation on the exercise of fundamental rights must be provided for by law, and respect the essence of those rights and freedoms. The principle of proportionality and the need to protect the rights and freedoms of others shall be respected. In addition to EU law, guidance

30 Notions such as ‘public interest objectives’, ‘reasons of overriding general interest’, ‘overriding reasons of public interest’, ‘overriding interests in the general interest’ and ‘legitimate interests’ are used. 31 Case C-112/00 Schmidberger EU:C:2003:333. 32 Case C-260/89 ERT EU:C:1991:254, para 41. 33 Art F(2) TEU, thereafter Art 6(1) TEU and now Art 2 TEU. 34 Case C-617/10 Åkerberg Fransson EU:C:2013:105, paras 19–21. 35 See for example Case C-390/12 Pfleger and Ors EU:C:2014:241, para 36. 36 On the discussion see B van Bockel and P Wattel, ‘New Wine into old Wineskins: the Scope of the Charter of Fundamental Rights of the EU after Åkerberg Fransson’ (2013) 6 EL Rev, 866–83. 37 Case C-42/17 MAS and MB EU:C:2017:936. 38 Art 6 TEU. 39 Art 17 of the Charter. 40 Art 52 of the Charter. See also Art 8 of the ECHR. 41 According to Art 52(3) of the Charter, in so far as the rights recognised by it correspond to rights guaranteed by the ECHR, they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on those rights are the same as those allowed by that convention.

Free Movement of Goods in a Changing Union  233 is provided by the European Court of Human Rights’ (ECtHR) case law. It acknowledges the need to protect interests such as national security, public safety, the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others.42 The reference to the ‘essence of those rights and freedoms’ is noteworthy. The principles and rights reaffirmed by the Charter will be discussed more in detail below. In order to justify national restrictions, the Member States might also refer to the general principles of EU law, such as the precautionary principle connected with the protection of the environment, health and consumers or the prohibition of abuse of rights43 and seek corroboration of international agreements and conventions. Member States often rely on a combination of interests falling within the remit of different regimes. As Allan Rosas argues, invoking too many public interests simultaneously may convey the perception of a ‘shopping list’ while one single interest consideration backed up by solid and as concrete as possible information may be more convincing. The burden of proof rests with the Member States. If the arguments are based on objectively verifiable facts such as the travaux préparatoires of the measure, the chances of success may be greater than if it is obvious that the interest is invoked mainly for the purposes of the litigation.44 The Court only rarely concludes that an interest or a combination of interests would not constitute a legitimate aim. If the contested measure is not considered justified, the reason usually lies elsewhere. There are, however, two important caveats. Firstly, the free movement of goods may not be restricted on purely economic grounds, eg in order to improve national competitiveness, promote investments or safeguard the survival of an undertaking.45 This does not prevent the national measure from having positive economic side effects as the case law on gambling demonstrates.46 Secondly, the need to lighten the administration’s burden cannot serve as a justification.47 However, the circumstances where national restrictions are defended tend to be multidimensional, involving inextricably interlinked objectives.

IV.  Interests Justifying Restrictions to the Free Movement of Goods The Member States may seek to protect a large variety of public interests in order to justify national restrictions to the free movement of goods. Such interests differ as to their nature, content and weight. In addition, variations may exist between the Member States and between different eras. Recognising a wide range of legitimate interests contributes to the

42 Explanations relating to the Charter of Fundamental Rights [2007] OJ C 303/17. 43 See Brunessen (n 12), 1–2. 44 Rosas (n 14), vi. 45 Case 7/61 Commission v Italy EU:C:1961:31; Case C-120/95 Decker EU:C:1997:399. For more details, see Oliver (n 15), 239–41. 46 Case C-275/92 Schindler EU:C:1994:119; Case C-67/98 Zenatti EU:C:1999:514; Case C-212/08 Zeturf EU:C:2011:437. 47 Case 104/75 De Peijper EU:C:1976:67, para 18.

234  Heidi Kaila legitimacy of the EU. In certain rare cases, it seems that the Court has taken into consideration also reasons in the private interest.48 Similar legitimate interests are recognised in EU law also in other contexts than that of justifications. The division of competences between the EU and the Member States in the relevant provisions of the EU Treaties can have an influence on how the national margin of manoeuvre is perceived when interpreting and applying the regimes of justification.

A.  Fundamental Rights The EU is committed to the protection of fundamental rights.49 The origins of the doctrine date back to the 1960s. Notably in order to defend the primacy of EU law over national law, the Court recognised in Stauder50 that fundamental rights are enshrined in the general principles of EU law and protected by the Court. According to Nold,51 in safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States and from the international treaties for the protection of human rights on which the latter have collaborated or of which they are signatories. In Wachauf,52 the Court declared that the requirements for the protection of fundamental rights are binding on the Member States when they implement EU rules. According to ERT,53 fundamental rights have to be respected when the Member States derogate from an internal market freedom relying on the grounds of justification. The underlying philosophy is that defining what constitutes a violation of such freedoms is a matter of EU law. The scope of the derogations and the conditions for applying them are ‘creatures’ of that law.54 This finding is not undermined by the fact that some grounds of derogation, such as the reasons of public policy and public security, are closely linked with national sovereignty. Indeed, it would be difficult to apprehend such notions without considering EU fundamental rights.55 According to Familiapress,56 the same reasoning applies when mandatory requirements are relied on. In Schmidberger,57 delivered after the proclamation of the Charter, the Court clearly established that the protection of fundamental rights is a legitimate interest which, in principle, can justify restrictions to the free movement of goods. The case concerned the decision of Austrian authorities not to prohibit a demonstration impeding the free movement of goods. Without establishing any hierarchy between, on the one hand, the protection of the freedom of expression and assembly and, on the other, the freedom of movement, the Court 48 See in particular Case C-325/08 Olympic Lyonnais EU:C:2010:143; Case C-415/93 Bosman EU:C:1995:463. 49 Arts 2 and 6 TEU. 50 Case 29/69 Stauder EU:C:1969:57, para 7. 51 Case 4/73 Nold EU:C:1974:51, para 13. 52 Case 5/88 Wachauf EU:C:1989:321. 53 Case C-260/89 ERT (n 32). 54 JHH Weiler and S Fries, ‘A Human Rights Policy for the European Community and Union: The Question of Competences’ in Alston, M Bustelo, J Heenan (eds) The EU and Human Rights (Oxford, Oxford University Press, 1999) 147, 163. 55 K Lenaerts and J A Gutiérrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47 CML Rev 1659. 56 Case C-368/95 Familiapress EU:C:1997:325, para 24. 57 Case C-112/00 Schmidberger (n 31).

Free Movement of Goods in a Changing Union  235 deemed it necessary to weigh those principles in relation to one another. Having regard to the accompanying measures taken to avoid a serious disruption to free ­movement58 and the wide margin of discretion enjoyed by the national authorities, the latter were reasonably entitled to conclude that the legitimate objective pursued could not be achieved by less restrictive measures. The ruling was followed by Omega59 where the Court weighed the respect for human dignity in relation to the freedom to provide services. It considered that the prohibition on commercial exploitation of games consisting in ‘playing at killing’ corresponded to the level of protection of human dignity which the national constitution sought to guarantee and was proportionate to the objective pursued. The Court referred to the Charter for the first time in 2006 in Parliament v Council.60 As a legally non-binding document, the Court took its provisions into consideration in combination with other sources of fundamental rights, such as the general principles of EU law and the ECHR.61 In The International Transport Workers’ Federation62 the Court assessed the right to collective action, referred to in the Charter,63 in relation to the freedom of e­ stablishment and in Laval un Partneri64 in relation to the freedom to provide services.65 The right to take such action to protect the workers is a fundamental right and may ­constitute an overriding reason of public interest. In its case law on internal market freedoms, the Court has also recognised the importance of the protection of children.66 In the post-Lisbon case law, the Court has applied the Charter as a matter of daily business and has relied less on other sources of fundamental rights. In the context of the freedom of movement, it has evaluated rights such as the right to personal identity and privacy,67 right to property, right to an effective remedy, access to an impartial tribunal and freedom to conduct business.68 The Court tends to balance the rights and principles in relation to one another without juxtaposing them. Stronger terminology seems to be used when assessing national interests attached to fundamental rights, such as a ‘legitimate interest’, instead of a ‘mandatory requirement’.

B.  Values Attached to National Identity, Culture and Language The process of European integration draws inspiration from the cultural, religious and humanist inheritance of Europe. It is undertaken while respecting the history, culture and 58 cf Case C-265/95 Commission v France EU:C:1997:595, where the Member State concerned had not adopted such adequate measures. 59 Case C-36/02 Omega EU:C:2004:614, para 35. 60 See Case C-540/03 Parliament v Council EU:C:2006:429, para 38, and Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, [2003] OJ L251/12. The preamble of the regulation contained an explicit mention of the Charter. 61 See A Rosas and H Kaila, ‘L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: Un premier bilan’ (2011) 1 Il Diritto dell’Unione Europea 1–28. 62 Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union EU:C:2007:772. 63 Art 28 of the Charter. 64 Case C-341/05 Laval un Partneri EU:C:2007:809. 65 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L18/1. 66 Case C-244/06 Dynamic Medien EU:C:2008:85. 67 Case C-208/09 Sayn-Wittgenstein EU:C:2010:806. 68 Case C-390/12 Pfleger and Ors (n 35). See also Case C-201/15 AGET Iraklis EU:C:2016:972.

236  Heidi Kaila traditions of the Member States and their peoples.69 The Charter declares that the EU is conscious of its spiritual and moral heritage.70 These provisions are closely connected to the respect of the Member States’ national identities. The question of morality71 shall be discussed below under the proper functioning of the society. In terms of Article 4(2) TEU, the EU respects the national identity of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. The concept is sensitive and the Court does not seem to base its reasoning very easily on it.72 At the core of such an identity lies the Member State’s constitutional history. In Omega, the Court put emphasis on the level of protection of human dignity which the national constitution sought to guarantee. As regards the free movement of persons, the Court has acknowledged that, in the context of a Member State’s constitutional history, the abolition of nobility, as an element of national identity, could be taken into consideration when a balance was struck between legitimate interests and the right of free movement.73 National identity comprises also the protection of a state’s official national language.74 As regards the free movement of goods, linguistic questions emerge notably in the context of labelling. The respect of national identity shall not be interpreted as a permission to disregard the fundamental principles of EU law, such as primacy, solidarity,75 loyal cooperation and the respect for the rule of law.76 As to cultural aspects, the weight thereof has increased since the entry into force of the Maastricht Treaty (1993). Today, according to the EU Treaties, the EU respects the richness and diversity of its cultures and languages, as well as the preservation and development of European cultural heritage. It supports, coordinates and supplements the Member States’ actions in the field of culture. Cultural aspects shall be taken into account in the EU’s action, in particular in order to respect and promote diversity.77 The respect by the EU of cultural diversity is reaffirmed in the Charter.78 Article 36 TFEU recognises the need to protect national treasures possessing artistic, historic or archaeological value. Removing an object of national heritage from the national territory is hardly recompensed by the object being protected in the importing Member State. As to cultural objects unlawfully imported or exported, their return is governed by Directive 2014/60/EU.79 The subject matter is also regulated by international agreements. The Court has considered that cultural interests such as encouraging the creation

69 Recitals to the TEU. 70 Recitals to the Charter. 71 See Case C-275/92 Schindler; n 46 above, where the Court assesses moral, religious or cultural aspects together. 72 See also Opinion of AG Campos Sánchez-Bordona in Case C-621/18 Whightman EU:C:2018:978. 73 Case C-208/09 Sayn-Wittgenstein, ECLI:EU:C:2010:806; Case C-438/14 Bogendorff von Wollersdorff EU:C:2016:401. 74 Case C-391/09 Runevič-Vardyn and Wardyn EU:C:2011:291. 75 See Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council EU:C:2017:631. 76 See Case C-216/18 PPU LM EU:C:2018:586. 77 Recitals and Art 3 TEU and Art 167 TFEU. 78 Art 22 of the Charter. 79 Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of Member State, [2014] OJ L 159/1. See also T Von Plehwe, ‘European Union and the Free Movement of Cultural Goods’ (1995) European Law Review 5, 431–50.

Free Movement of Goods in a Changing Union  237 of c­ inematographic works80 and the protection of books as cultural objects81 constitute mandatory requirements. The Treaties and the Charter also recognise the status under national law of churches and religious associations or communities, as well as of philosophical and non-confessional organisations.82

C.  Proper Functioning of Society The EU respects the Member States exercising their essential tasks of ensuring the proper functioning of society. In terms of Article 4(2) TEU, the EU does not interfere in their essential functions, such as maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of the Member States.83 The provision is a corollary to the respect of national identity and is in line with the principle of conferred powers, foreseen in Article 5 TEU. According to Article 36 TFEU, national restrictions may be justified on the grounds of public morality, public policy or public security. The concepts are closely linked to national sovereignty. Their protection implies, as a rule, the use of public authority. Public morality reflects the values of society, fleshed out in the national legal order. The case law on obscene and indecent articles is well known.84 Moral values are most often relied on in conjunction with other legitimate aims, such as human dignity, the protection of minors, gamblers and night workers or animal welfare. Similarly, public policy is often invoked together with public security. As to public security, it covers public safety and internal and external aspects of security.85 It cannot be deduced from Articles 4(2) TEU, 36 TFEU or any similar p ­ rovision86 that issues relating to public security would fall outside the scope of application of EU law. A very difficult issue is the right to security as a fundamental right.87 Public policy or public security can be relied on in the presence of a genuine and sufficiently ­serious threat affecting one of the fundamental interests of the society.88 The circumstances and the importance attached to public morality, public policy or public security may vary from one Member State and from one era to another. The Member States are, in principle, free to determine the level of protection sought89 and to choose a system of protection different from that adopted by another state.90

80 Joined Cases 60/84 and 61/84 Cinéthèque EU:C:1985:329. 81 Case C-531/07 FBM v LIBRO EU:C:2009:276 and Oliver (n 15), 310. 82 Art 17 TFEU and Art 22 of the Charter. 83 Several interesting cases are pending in this regard. See eg Case C-623/17 Privacy International. 84 Case 34/79 Henn and Darby (n 26) and C-121/85 Conegate v HM Customs & Excise EU:C:1986:114. See also Case C-1/96 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming, where public morality was invoked to safeguard its respect in another Member State. EU:C:1998:113. 85 Case C-367/89 Richardt EU:C:1991:376. 86 See Arts 71 and 271 TFEU. 87 See Case C-601/15 PPU J. N. EU:C:2016:84. 88 Case 30/77 Bouchereau EU:C:1977:172, para 35. 89 Case C-54/99 Église de scientologie EU:C:2000:124, para 17. 90 Case C-124/97 Läärä EU:C:1999:435; Case C-67/98 Zenatti (n 46); Case C-6/01 Anomar and Ors EU:C:2003:446.

238  Heidi Kaila Various mandatory requirements recognised by the Court relate to the maintenance of public order and public security in a wider sense, and more indirectly, to the protection of moral values. Such considerations include the fight against fraud,91 drug tourism and different types of criminality,92 the sound administration of justice,93 the maintenance of social order94 and the protection of road safety.95 Such requirements comprise also the application of rules on professional conduct,96 the protection of the reputation of a particular profession,97 the protection of creditors98 and probably also the functioning of the public telephone network.99 A prospering and well-functioning society requires sound and sustainable public finances. The effectiveness of fiscal supervision100 which corresponds, by and large, to the prevention of tax evasion, is mentioned already in Cassis de Dijon.101 Interests such as ensuring the cohesion of the fiscal system102 and the financial balance of the social security system are also to be protected.103 Safeguarding such interests is not in contradiction with the prohibition of restrictions adopted for purely economic reasons. A distinction has to be made between the fundamental aspects of government finances and, for example, the protection of a particular business branch.104 The former interest is of structural nature and the latter of circumstantial nature. In addition, ensuring the proper functioning of the national social security system is vital for safeguarding public health objectives.

D.  Social Dimension References to the EU’s social dimension can be traced back to the Treaty of Rome as it aimed at economic and social progress and an improvement of the living and working conditions within the signatory states. In the early years of integration, the focus was on improving the working and living conditions of the economically active population and their family members. Calls for a social Europe as a counterbalance to economic and technocratic integration started to emerge in the 1980s. The Single European Act (1987) included a reference to the ECHR and to the Social Charter. Currently, the EU Treaties provide EU shall work for a highly competitive social market economy, aiming at full employment and social progress. It supports and complements the activities of the Member States in fields such as working

91 Case C-275/92 Schindler (n 46). 92 Case C-265/06 Commission v Portugal EU:C:2008:210; Case C-137/09 Josemans ECLI:EU:C:2010:774. 93 Case C-3/95 Reiseburo Broede EU:C:1996:487. 94 Case C-275/92 Schindler (n 46). 95 Case C-55/93 Van Schaik EU:C:1994:363. 96 Case C-106/91 Ramrath EU:C:1992:230. 97 Case C-384/93 Alpine Investments EU:C:1995:126. 98 Case C-3/95 Reiseburo Broede (n 93). 99 Case C-18/88 RTT EU:C:1991:474. 100 Case C-250/95 Futura Participations EU:C:1997:239. 101 Case C-13/77 INNO v ATAB EU:C:1977:185. See Oliver (n 15), 283. 102 Case C-204/90 Bachmann EU:C:1992:3; Case C-300/90 Commission v Belgium EU:C:1991:340. 103 Case C-158/96 Kohll EU:C:1998:171. 104 V Hatzopoulos, ‘Recent Developments of the Case Law of the ECJ in the Field of Services’ (2000) 37 CML Rev 43–82.

Free Movement of Goods in a Changing Union  239 conditions, social security and social protection. Various social rights and principles are reaffirmed by the Charter.105 The protection of health and safety at work are covered by Article 36 TFEU, governing the protection of health and life of humans. As to the improvement of working conditions, it constitutes a mandatory requirement according to the case law on national restrictions on night work106 and on Sunday trading.107 Such measures reflect national or regional socio-cultural characteristics. In the light of Keck and Mithouard, they would no longer be considered as measures having an equivalent effect provided that the two conditions set by the ruling are met. In its subsequent case law, the Court has underlined that the EU activities include not only an ‘internal market characterised by the abolition of obstacles to the free movement of goods, persons, services and capital’, but also ‘a policy in the social sphere’. Since the EU has also a social purpose, the rights under the free movement provisions must be balanced against the objectives pursued by social policy, which include, inter alia, improved living and working conditions.108

E.  Protection of Health Along the same lines as for the social dimension, in the early years of integration, the primary concern of the Member States was how to coordinate the national social security systems to ensure an access to healthcare for migrant workers and their family members. The first references to public health as a political objective date back to the 1970s and 1980s. According to the Single European Act, the Commission had to take as a basis a high level of protection of health when adopting proposals in order to harmonise national legislations. Today, the EU complements national policies to protect and improve human health. A high level of human health protection shall be ensured in the definition and implementation of all EU policies and activities. The transversal and fundamental nature of the objective is also enshrined in the Charter.109 In terms of Article 36 TFEU, the protection of health and life of humans constitutes a ground of justification. It ranks foremost among the interests protected by the provision. The Member States may decide on the degree of protection they wish to assure, within the limits set by the EU Treaties. In Cassis de Dijon, the Court refers to public health as a mandatory requirement. As the interest is closely linked to the protection of health and life of humans, the Court has considered that those criteria must be understood in the same way and must be regarded as falling within the scope of Article 36 TFEU.110 The need to protect human health is one of the most frequently invoked justifications. It is important but also difficult to provide the necessary scientific evidence and all other relevant information on the alleged risk. The ground of justification is also connected to



105 Art

3 TEU and Arts 9 and 151–61 TFEU and notably Art 34 of the Charter. 155/80 Oebel EU:C:1981:177. 107 Case C-145/88 Torfaen EU:C:1989:59. 108 Case C-341/05 Laval un Partneri (n 64). 109 Arts 9, 114 and 168 TFEU and Art 35 of the Charter. 110 Joined Cases C-1/90 and C-176/90 Aragonesa EU:C:1991:327. 106 Case

240  Heidi Kaila mandatory requirements such as the prevention of social harms of gambling, the provision of adequate and accessible health and hospital services, the protection of minors and ensuring road safety. Article 36 TFEU refers to the protection of health and life of animals and plants. The origins of EU legislation on animal welfare date back to the 1970s. Today, the importance of the wellbeing of animals is reflected, in particular, in the reference, in Article 13 TFEU, to them as sentient beings, not as goods. The protection of animal welfare and veterinary policy constitute mandatory requirements. The relationship between Article 36 TFEU and the case law on mandatory requirements is not completely clear in this regard. In some cases, the Court has examined the protection of health and life of animals and animal welfare together with environmental protection.111 The subject matter is also regulated by international agreements.

F.  Consumer Protection Consumer protection was for several decades considered mainly a means of facilitating the effective operation of the common market as differing national consumer protection standards hampered the free movement of goods. The conviction that consumers enjoy rights of their own started to gain ground in the 1970s. According to the Single European Act, EU legislative proposal had to be based on a high level of consumer protection. Today, the EU aims at promoting the interests of consumers and ensuring a high level of consumer protection. The EU Treaties foresee a shared competence for the EU and the Member States notably to contribute to protecting the health, safety and economic interests of consumers. Consumer protection requirements shall be taken into account in defining and implementing other EU policies and activities. The Charter foresees a high level of consumer protection in EU policies and activities.112 In Cassis de Dijon, the Court referred to consumer protection as a mandatory requirement. It seems that the interest was recognised already earlier in connection with the notion of public policy.113 Consumer protection is also closely interlinked with the protection of human health. The protection of consumers’ health is mentioned in the EU Treaties.114 In addition, consumer protection is a question of trust between the Member States. Consumer protection is one of the most frequently invoked mandatory requirements in connection with alleged restrictions on the free movement of goods. The starting point is that the consumers’ interests can be secured by adequate and appropriate consumer information. The understanding of an average consumer, who is reasonably well informed and reasonably observant and circumspect, is taken as a reference.115 Under the conditions established by Keck and Mithouard, national measures governing selling arrangements no longer constitute measures having an equivalent effect. Such arrangements can concern when, where, how and by whom a product can be sold, as well

111 Case

C-219/07 Andibel EU:C:2008:353. 12, 114 and 169 TFEU and Art 38 of the Charter. 113 Case 12/74 Commission v Germany EU:C:1975:23, para 17. 114 Art 169 TFEU. 115 Case C-220/98 Estée Lauder EU:C:2000:8 and Oliver (n 15), 294. 112 Arts

Free Movement of Goods in a Changing Union  241 as certain advertising restrictions and price controls. However, applying those conditions is not always unambiguous. At the same time, the volume of EU consumer legislation has increased. The question remains of the scope of the margin of manoeuvre left to national authorities and the use of that margin in respect of the principle of free movement.

G.  Environmental Protection Environmental concerns started to emerge in the 1960s and an understanding on the need for action at the EU level began to take shape in the 1970s. The EU’s environmental policy was in the 1970s and 1980s mainly developed through secondary law.116 An explicit legal basis for such policy was introduced by the Single European Act. Today, a high level of environmental protection and the improvement of the quality of the environment are recognised as the EU’s objectives. The EU and the Member States shall adopt measures to this end. Environmental protection requirements are to be integrated into the definition and implementation of the EU’s policies and activities, in particular with a view to promoting sustainable development.117 The precautionary principle is emphasised. The transversal and fundamental nature of environmental protection is also reaffirmed in the Charter.118 Environmental protection is referred to as a mandatory requirement in the Commission’s Communication on Cassis de Dijon.119 The Court had recognised the interest as an essential objective already earlier.120 It first referred to it as a mandatory requirement in the case on the Danish bottle-return system.121 The relationship between environmental protection and the protection of human health under Article 36 TFEU is not completely clear. The protection of human health is one of the objectives of environmental policy. These objectives are closely interlinked, particularly in the context of combating air pollution and noise, with the aim of reducing health hazards due to the deterioration of the environment. The Court considers that the objective of health protection is inherent in the objective of protecting the environment.122 Invoking mandatory requirements is, in principle, only possible where the contested measure is indistinctly applicable. As regards environmental protection, the Court has adopted a rather flexible interpretation of that principle.123 Its approach makes it possible to assess the proportionality of distinctly applicable environmental protection measures and to put the emphasis on that test. In addition, in some cases, the Court has considered environmental protection and the grounds of justification foreseen in Article 36 TFEU as a whole.124

116 Rosas and Armati (n 2), 220. 117 Art 3 TEU and Arts 11, 114 and 192 TFEU. 118 Case C-440/05 Commission v Council EU:C:2007:625, para 60. 119 See n 29 above. 120 Case 240/83 Procureur de la République v ADBHU EU:C:1985:59. 121 Case 302/86 Commission v Denmark EU:C:1988:421. 122 Case C-524/07 Commission v Austria EU:C:2003:446, para 56; Case C-320/03 Commission v Austria EU:C:2005:684; Case C-28/09 Commission v Austria EU:C:2011:854. 123 See for example Case C-379/98 PreussenElektra EU:C:2001:160; Case C-389/96 Aher-Waggon EU:C:1998:35; Case C-573/12 Ålands Vindkraft EU:C:2014:2037. 124 Case C-219/07 Andibel (n 111).

242  Heidi Kaila By virtue of scientific progress and greater public awareness, the protection of environment is relied upon increasingly often. It is not unusual that the evidence on the alleged risk is insufficient or that the contested measure is considered disproportionate. This might be the case also where the contested measure is adopted to comply with environmental requirements established by EU law itself.125

H.  Fairness of Intra-EU Trade The EU Treaties and the Charter reaffirm several rights benefiting entrepreneurs, such as the freedom to conduct business.126 The internal market can only function properly if it operates under conditions of fairness. The protection of industrial and commercial property rights, the prevention of unfair competition and business practices, as well as consumer protection are essential in this respect. Article 36 TFEU recognises the protection of industrial and commercial property as a ground of justification. The provision refers notably to the use of patents, trade marks, copyrights and design rights. It seems that indications of provenance and designations of origin are protected under this provision, rather than under the regime of mandatory requirements, such as consumer protection and the prevention of unfair competition.127 The case law is however not clear. A wide range of legal aspects of intellectual property rights is regulated by EU legislation,128 and by international agreements. The protection of such rights is also covered by the Charter, as an element of the right to property.129 In Cassis de Dijon, the Court refers to the fairness of commercial transactions as a mandatory requirement. In its earlier case law, it had already recognised the prevention of unfair competition as a legitimate interest.130 These interests are often assessed in combination with consumer protection.131

V.  Principle of Proportionality The principle of proportionality, referred to in Article 36 TFEU and in the Cassis de Dijon ruling,132 inhibits the application of national measures responding to a legitimate aim but being unreasonably restrictive of the free movement of goods. The principle is reaffirmed in the Charter which provides, in addition, that limitations to fundamental rights shall not constitute unreasonable interference undermining the very substance of those rights.133

125 Rosas and Armati (n 2), 221; Case C-28/09 Commission v Austria (n 122). 126 Art 16 of the Charter. 127 See for example Case C-3/91 Exportur v LOR EU:C:1992:420. 128 Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on ­quality schemes for agricultural products and foodstuffs [2012] OJ L 343/1. 129 Art 17 of the Charter. 130 Case C-12/74 Commission v Germany EU:C:1975:23. 131 Case C-47/90 Delhaize EU:C:1992:250; Case C-3/91 Exportur v LOR (n 127). 132 The principle is reflected in the use of the notions ‘justified’ in Art 36 TFEU and ‘indispensable’ in the Cassis de Dijon ruling. 133 Case C-292/97 Karlsson EU:C:2000:202, para 45.

Free Movement of Goods in a Changing Union  243 The principle of proportionality comprises two tests. Firstly, the contested measure has to be suitable for securing the attainment of the objective sought. This criterion refers to the relationship between the means and the end. The means shall be adequate and appropriate and must genuinely reflect the concern to attain the objective.134 Moreover, the concern shall be met in a coherent and systematic manner.135 The Court does not necessarily assess this element explicitly. Secondly, the contested measure shall not go beyond what is ­necessary in order to attain the objective. This requires assessing whether a similar outcome could be secured by less restrictive measures. However, the Member State does not have to prove positively that no other conceivable measure could enable that objective to be attained.136 It is always good to demonstrate that alternatives which may be less restrictive have been considered and that the contested measure has been chosen after careful reflection.137 The Member States should be able to prove that the contested measures are proportionate. The facts and the legal context of the main proceedings, as well as the arguments of the parties are essential. In infringement cases, the Court has to make the final assessment, but in preliminary ruling procedures, it can establish certain conditions and request the referring jurisdiction to assess whether they are satisfied. The latter is the best placed to make such assessments, having regard to the facts of the main proceedings. On the other hand, such an approach does not necessarily promote a uniform application of EU law and can affect legal certainty. It is crucial that the Court provides to the national jurisdiction enough guidance, defining the parameters of the analysis to be made.138

VI.  Concluding Remarks The internal market has offered greater choice at lower prices for consumers as well as higher standards of environmental, social and consumer protection. It has also generated new opportunities for businesses.139 The Court has played an essential role in this evolution. It has sought to establish an equilibrium between, on the one hand, the effective operation of the internal market and, on the other, the Member States’ need to regulate trade-related issues and to protect public interests. Its rulings have reflected the spirit and the requirements of different stages of European integration. The range of national interests protected under EU law has grown wider along with the evolution of values. The citizens of the Member States are no longer considered primarily as workers and entrepreneurs, or as consumers, but as EU citizens with rights and expectations attached to their wellbeing. The case law reveals a rising knowledge and awareness of the need to protect health, the environment and fundamental rights. At the same time, many Member States are struggling with new challenges and threats, notably as regards economic

134 For more details, see Barnard (n 12), 282–87. 135 Joined Cases C-338/04, C-359/04 and C-360/04 Placanica and Ors EU:C:2007:133. 136 See Case C-157/94 Commission v Netherlands EU:C:1997:499, para 58 and Case C-110/05 Commission v Italy (n 23), para 66. 137 Rosas (n 14), vi. 138 See also Barnard (n 12), 299. 139 Communication from the European Commission, ‘The Single Market in a changing World, A unique Asset in Need of Renewed Political Commitment’, COM/2018/772 final.

244  Heidi Kaila stability, digitalisation, climate change and security. Some seem to close in on themselves arguing the need to safeguard national identity. It is not unusual that in difficult times barriers to the free movement of goods re-emerge. The case law on justifications has not undermined the free movement of goods. The burden to prove that the contested measure complies with EU law rests with the Member States. The principle of proportionality has to be respected at all times. The Court can dismiss the measure also on other grounds, such as legal certainty. If the contested measure is not precise enough to enable the individuals to be apprised of the extent of their rights and obligations deriving from EU law, it can be deemed to be contrary to that principle.140 The challenge lies elsewhere, namely in the lack of clarity and predictability which is accentuated due to the overlaps between the legitimate interests protected under each justification regime. The Member States as well as businesses and individuals can take full advantage of the internal market only if there is legal certainty. The question arises whether the case law can be fine-tuned without altering the delicate balance between the operation of the internal market and the need to protect public interests, and without encroaching on the competences of the EU legislator or of the Member States as the masters of possible treaty amendments. One source of confusion is the dichotomy between indistinctly and distinctly applicable measures. Its clarity and merits have been questioned in legal literature and signs pointing towards an adjustment of the case law have been observed.141 Different practical ways of tackling the issue can be discerned. The Court might refrain from identifying the character of the contested measure. When it is clear that the measure has been adopted for purely economic reasons142 or that it is disproportionate, reasons of procedural efficiency might plead for leaving such a characterisation aside. It is also possible to consider the interests at stake as a ‘whole’, combining elements falling within the remit of different justification regimes. Likewise, the Court might establish that in view of the importance of the interests invoked and the circumstances, the presence of discriminatory features does not rule out recourse to mandatory requirements. Such an approach seems appropriate notably as regards the protection of health and the environment. Since the contested measures still have to comply with the principle of proportionality and discriminatory measures seldom do, the functioning of the internal market is not jeopardised. However, it should be borne in mind that mandatory requirements cannot be considered as an extension of Article 36 TFEU. Amending the Treaties falls within the competence of the Member States. The question of integrating environmental protection into Article 36 TFEU was raised in the negotiations for the Treaty of Amsterdam. In addition, weighing various public interests in relation to the freedom of movement is not straightforward. Such interests vary largely as to their nature, content and importance. Safeguarding constitutional identity, ensuring human dignity as a fundamental right and promoting the fairness of commercial transactions differ in many respects. Should constitutional issues and the protection of fundamental rights, especially as regards the essence thereof, take precedence over other interests? At the same time, much depends of the circumstances of the proceedings. For example, the commercial use of freedom of ­expression does

140 See

Case C-54/99 Église de scientologie (n 89), para 17, and Barnard (n 12), 289. for example Oliver (n 15), 219–20. 142 Spaventa (n 12), 463. 141 See

Free Movement of Goods in a Changing Union  245 not equal to the exercise of that freedom by protesters.143 It seems that the Court prefers not to juxtapose or hierarchise the interests at stake. Besides, contradictions should not be seen where they do not exist. For example, an efficient dynamic economy and one that places social justice at its core are closely interdependent.144 Finally, the language used by the Court deserves attention. When the interest relied on is fundamental, the Court seems to use the notion of legitimate interest. This is reasonable also because it shifts the emphasis away of the question of distinctly and indistinctly applicable measures. Moreover, as Allan Rosas argues, the Court should probably somewhat streamline the way the principle of proportionality is formulated, referred to and used in the reasoning of judgments.145 One might ask whether the nature of the contested measure, the weight of the interest relied on and the scope of national margin of appreciation should be taken more overtly into account when determining the intensity of the proportionality test. For example, discriminatory measures, rules governing the composition of products, selling arrangements not complying with the two conditions set by Keck and Mithouard and measures governing the use of products do not necessarily have the same impact on intra-EU trade. As to the scope of national margin of appreciation, one might consider that it should reflect more clearly the division of competences between the EU and the Member States. This margin is undoubtedly wider in questions relating to public order and public security than in consumer protection issues. The question remains whether that margin has been used properly. At the end, determining whether the contested measure is proportionate is based on an overall assessment where instinctive aspects also play a certain role.146 Interestingly, the importance of the case law discussed above does not seem to decrease as the volume of EU legislation increases. The Commission tends to favour regulations, but the amount of directives is still significant. When using their margin of manoeuvre, the Member States shall respect the principle of free movement. In should also be borne in mind that the possibility of invoking similar public interests exists with respect to the other internal market freedoms. As the demarcation lines between those freedoms are not clear and as the relationship between the interests foreseen in the derogatory treaty provisions and those established by the Court varies depending on the freedom in question, confusion arises. Some approximation of the principles applicable to the different freedoms would be welcome while recognising that those freedoms differ. Finally, the Member States should take the necessary steps to facilitate the free movement of goods, notably by implementing properly the relevant case law. If the Treaty texts are one day reopened, assessing whether the provisions on the freedom of movement correspond to the state of affairs would also be necessary. As Allan Rosas has claimed: ‘What is to be regretted, given the trend in the case law towards a more uniform approach to the different economic freedoms, notably concerning the concept of restriction itself and the justifications which might, under specific conditions, be invoked, is that the Treaty of Lisbon did not take the opportunity to align and codify the case law to date.’147 143 See Case C-71/02 Karner EU:C:2004:181 and Case C-112/00 Schmidberger (n 31). 144 Case C-341 Laval un Partneri (n 64). 145 Rosas and Armati (n 2), 213. 146 See A Rosas, ‘Life after Dassonville and Cassis: Evolution but no Revolution’ in M Maduro and L Azoulai (eds) The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Treaty of Rome (Oxford, Hart Publishing, 2010) 444. 147 Rosas and Armati (n 2), 213.

246

17 Religion in the Workplace When is Enforcing a Religious Ethos Acceptable? and When is Neutrality Discrimination? ELEANOR SHARPSTON*

Over the last four years, the Grand Chamber of the Court of Justice of the European Union (ECJ, or Court) has dealt with four big cases involving the delicate question of how to balance competing rights in the workplace: the employee’s right to their religion (or absence thereof) and the employer’s right, either to promulgate a policy of deliberate neutrality in order to maximise economic gain, or to impose its own religious ideology upon its workforce. The subject is emotionally and politically charged, and raises awkward questions about the true values of the society that we think – or hope, or believe – that we live in. Four different Advocates General – Juliane Kokott, Melchior Wathelet, Evgeni Tanchev and myself – have offered the Court guidance as to the underlying issues and have proposed recommendations as to the direction(s) in which to steer. Allan Rosas sat as a judge in the Grand Chamber in all four cases. That seems added justification for choosing this topic for my contribution to his festschrift.

I.  ‘Un Peu d’Histoire’ It is impossible to make sense of this topic without first stepping back into our shared history: the history of Europe and of European civil society. The starting point (which holds good from the earliest days until about the eighteenth century) is that ‘of course we are all religious’. Either we genuinely believe (often, in a world in which life expectancy is normally short, with much fervour) or, if we happen not to believe, we are careful overtly to behave as though we are part of the mainstream religion. Thus, religion imprints all of life. The cycle of the year revolves around the religious festivals (in a very Catholic country like Luxembourg, the pattern of school and public holidays still * The views expressed are personal and do not bind the Court of Justice of the European Union, in which I serve as an Advocate General. I would like to thank Doyin Lawunmi and Peter Gjørtler for commenting on the draft at short notice and Isabella Wimmer for reference-checking and general toilettage of the text. It is also a particular pleasure to be able publicly to thank David Guild, the référendaire who worked with me on Case C-188/15 ADDH EU:C:2016:553, and who deserves substantial credit for the Opinion that eventually emerged from its chrysalis.

248  Eleanor Sharpston emphatically follows this tradition, as does the ECJ). From time to time there are outbursts of religious zeal, such as the Crusades or the colonisation of the New World and the Far East, with the cross and the sword going hand in hand simultaneously to expand economic power and bring salvation to the heathen. You fail to conform to the majority religion and to observe its prescribed outward manifestations at your peril. Examples abound: the trial and execution of Socrates, the ostracisation of the Jews, the Reformation and the Counter-Reformation (a period during which the ruler of an area (principality, country) chose which brand of Christianity was to prevail in his territory: ‘Cuius regio, eius religio’), or the operations of the Inquisition in Spain, which led to an entire group, the ‘Marranos’, having perilously to combine their covert Judaism with overt Christianity.1 Where religious divergence is tolerated (Maimonides’ presence teaching in Cordoba in Spain under the Moors is a shining example) it is of course accepted that if you belong to religion X, you will observe its strictures in both your public and your private life. Thus, no one thinks that you should only manifest your religion privately. As a result, overt religious observance is a social norm. In a Catholic country, no meat during Lent becomes the public rule as well as a matter of private religious observance. If you belong to a minority religious group, you may indeed be required by the secular powers to wear particular dress to mark you out. Thus, Jews wore distinctive clothing in the Middle Ages. Later, that was perpetuated in the infamous yellow Star of David imposed by the Nazis: the ethnic marker for the race whose extermination was to be achieved in the Final Solution. The Enlightenment allowed groups previously excluded (notably Jews, but also NonConformists) to become part of successful, mainstream secular society by operating a clear distinction between personal and public life.2 The gradual rise of secularism may now – at least in ‘civilised Western society’ – have led to a ‘post-religious’ (and, one hopes, also a more tolerant) world.3 In that world, however, there are signs of the emergence of a new God: ‘neutrality’. In this context, it is perhaps worth bearing in mind that discrimination (or the absence thereof) may look different, depending on whether you are articulating society’s values of the time, or the actual victim of the adverse treatment. Blind spots as to what constitutes discrimination are easier to see through the prism of history. Perhaps I may be permitted to reiterate here what I said in an Opinion written very shortly after I joined the Court: A classic formulation of the principle of equality, such as Aristotle’s ‘treat like cases alike’ leaves open the crucial question of which aspects should be considered relevant to equal treatment and which should not. Any set of human beings will resemble each other in some respects and differ from each other in others. A maxim like Aristotle’s therefore remains an empty rule until it is established what differences are relevant for the purposes at hand. For example, if we criticise a law banning redheads from restaurants as being unjust, that is based on the premise that, as 1 A popular explanation for the Kol Nidre prayer at the start of Yom Kippur (the Day of Atonement), which cancels all vows, is that it allowed Marranos to return inside the Jewish fold at the most important point in the Jewish year. 2 ‘Be a man in the world and a Jew in your tent.’ www.myjewishlearning.com/article/haskalah/ has an accessible explanation of the Jewish approach to how to achieve this feat. 3 That passionate religious commitment is alive and well – and that tragically it sometimes also spawns precisely the kind of violent religious intolerance that scarred European history for centuries – is all too evident from the activities of Al Qaeda, Islamic State and their brethren.

Religion in the Workplace  249 regards the enjoyment of a meal in a restaurant, hair colour is irrelevant. It is therefore clear that the criteria of relevant resemblances and differences vary with the fundamental moral outlook of a given person or society. A moment’s historical reflection will show that statements about ‘equality’, when deconstructed, have often meant ‘equality of treatment, in particular respects, for those inside the magic circle’ rather than ‘equality of treatment in every relevant respect for absolutely everyone’. In the Athens of Pericles, citizens of the polis might claim a right to equal treatment in respect of access to justice or civic advancement; but the concept of equality excluded equal treatment with citizens in those respects for metics or slaves. Spartan equality – a rather different model – similarly excluded helots and slaves. Both (naturally) excluded women. Nearer to our times, the Declaration of Independence of the United States of America may have proclaimed that ‘all men are created equal’, but it took the Civil War and a rather long aftermath before truly equal treatment began to extend to the descendants of black slaves. Discrimination on grounds of religion seemed perfectly natural – indeed, ordained by God – during large portions of the history of Europe and the Mediterranean basin.4

Have we in Europe now moved from overtly promulgated discrimination on grounds of religion in the name of religion to covertly endorsed discrimination on grounds of religion in the name of neutrality?

II.  Setting the Scene The EU legislative background can be described (relatively) swiftly. From other areas of employment law – notably, from the Equal Pay Directive5 and the Equal Treatment ­Directive6 – EU law has developed specific concepts of direct discrimination and indirect discrimination. Direct discrimination occurs when a characteristic (such as sex) is used as the basis for differential (adverse) treatment. Indirect discrimination occurs when the criterion used to differentiate between two (comparable) individuals is ostensibly neutral, but is in reality likely adversely to affect a significantly greater proportion of one group than another. However, the use of such a neutral criterion is not unlawful where the differential treatment is objectively justified by a legitimate aim and the means employed to achieve that aim are appropriate and necessary (that is, proportionate). In 2002 two general directives were adopted on the basis of what was then Article 13 EC: Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin7 and Directive 2000/78 establishing a general framework for equal treatment in employment and occupation.8 The quartet of cases discussed

4 Opinion in Case C-427/06 Bartsch EU:C:2008:297, paras 44–45. 5 Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/19. 6 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40. 7 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 8 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

250  Eleanor Sharpston in this chapter was concerned with the latter. For present purposes, the essential provisions are Articles 1, 2, 3 and 4. Article 1 identifies the prohibited forms of discrimination: those using the criteria of ‘religion or belief, disability, age or sexual orientation’. Article 2 contains the classic twopronged definition of what constitutes discrimination. Thus, Article 2(1) states that, ‘For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’. Article 2(2) then explains that, For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary …9

Article 3 defines the scope of the directive, which covers, inter alia, ‘conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions’ (Article 3(1)(a)) and ‘employment and working conditions, including dismissals and pay’ (Article 3(1)(c)). Article 4 is entitled ‘Genuine occupational requirements’. It is necessary to quote this lengthy provision in full: 1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which 9 Art 2(2)(b)(ii) imposes a requirement to take ‘appropriate measures’ to eliminate disadvantages for persons with a particular disability and is not relevant to the present discussion.

Religion in the Workplace  251 is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

In Directive 2000/78, the EU legislator thus provided a classic framework for c­ ombating discrimination, covering direct and indirect discrimination and laying down specific circumstances in which treatment whose result would plainly be discriminatory was nevertheless, ‘for good reason’, not to be deemed unlawful.10 Mention should also naturally be made of the Charter of Fundamental Rights of the ­European Union. Article 10 of the Charter protects the ‘right to freedom of thought, conscience and religion. This right includes … freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, p ­ ractice and observance’. Article 16 of the Charter states: ‘The freedom to conduct a business in accordance with Union law and national laws and practices is recognised’. Article 21(1) of the Charter states: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’ The scene is set. Here we have fundamental rights about to enter into direct conflict with one another.

III.  The ‘Veil’ Cases: When is ‘Neutrality’ Discrimination? When these two cases were heard by the Court, they were known as Case C-157/15 Achbita11 and Case C-188/15 Bougnaoui.12 Since the recent anonymisation policy of the Court has entered into force, it is in principle more correct – but more complicated – to refer to them now by their ‘new’ names: respectively, G4S Secure Solutions (the defendant in Case C-157/15) and ADDH (Association pour la défence des droits de l’homme: the co-plaintiff in Case C-188/15). The facts of the two cases were, in many respects, similar. Both concerned observant Muslim women who chose, as an integral part of their religion, to display personal modesty by wearing the hijab: the Islamic headscarf that conceals a woman’s hair whilst leaving the face uncovered. In terms of its visual effect, it is remarkably similar to the wimple that formed a standard part of a nun’s dress when I was at convent school. It has no discernible effect on the wearer’s ability to communicate with others or to play a full part in the economic life of Western society. It does, however, mark the wearer out, unmistakeably, as a female Muslim who is dressing ‘modestly’ in accordance with Koranic prescripts.

10 Directive 2000/43 follows a similar structure: Art 1 (purpose), Art 2 (concept of discrimination), Art 3 (scope) and then two articles covering permitted derogations: Art 4 (genuine occupational requirement) and Art 5 (positive discrimination). See also the much earlier Equal Treatment Directive (n 8 above). 11 Opinion of AG Kokott in Case C-157/15 G4S Secure Solutions EU:C:2016:3; judgment of 14 March 2017, EU:C:2017:203. 12 My Opinion in C-188/15 ADDH EU:C:2016:553; judgment of 14 March 2017, EU:C:2017:204.

252  Eleanor Sharpston Ms Achbita, the claimant in G4S Secure Solutions, did not initially wear the hijab at work, but over time her level of religious observance changed and she informed her employers, G4S, that she intended to start wearing it. That company provides security services to a wide range of clients, including some for whom laïcité – secularism – is an overriding consideration. It has a company code of strict neutrality, reflected in written instructions to its employees.13 The latter are prohibited from wearing any visible sign of their political, philosophical or religious beliefs in the workplace or engaging in any observance of those beliefs. Wearing a hijab at work is manifestly contrary to that code. Ms Bougnaoui, the claimant in ADDH, had always worn a hijab. She was hired from university by Micropole SA to work as a software engineer. There was no dress code in force at that company. Most of the time, Ms Bougnaoui worked in-house at Micropole, but occasionally she was despatched to work at a client’s premises. After one such occasion, the client wrote to Micropole saying that the presence of a woman software engineer wearing a hijab had made some of its workforce feel ‘uncomfortable’ and issued the blunt instruction: ‘Pas de voile la prochaine fois’ (‘No hijab next time’). Both women persisted in wearing the hijab, despite warnings from their respective employers. Both were dismissed.14 Both brought claims for unfair dismissal. In due course the national supreme courts in Belgium and France, respectively, made references to the Court under Article 267 TFEU. The cases were assigned to the same reporting judge ­(François Biltgen) but, unusually, to two different Advocates General. As it happened, these were at the time the Court’s two longest-serving, and also its only two female, Advocates General: Juliane Kokott (C-157/15) and myself (C-188/15). I think it is fair to say that, given the sensitivity of the subject-matter and the diversity of views that it is possibly honestly to hold on the subject, having two Opinions on (essentially) the same subject-matter was not a wasteful duplication of resources – though it may, as matters turned out, have caused the Grand Chamber a few headaches. Because G4S Secure Solutions had the lower case number, it was logically treated as the leading case. The cases were heard separately but on the same day, by an identical composition of the Grand Chamber.15 Advocates General enjoy the luxury of expressing themselves individually, in a text that they hope will be persuasive but know will not be binding, as to how they (personally and individually) think that the Court should decide a case. That is very different from the consensus-building required to arrive at a single, collegiate judgment. Juliane Kokott and I duly reached our individual conclusions, which were as nearly diametrically opposed as it is reasonably possible to achieve.16

13 When Ms Achbita was hired, there was an unwritten rule within G4S that workers would not wear visible signs of their political, philosophical or religious beliefs in the workplace (see para 11 of the judgment). The written rule (in the shape of an amendment to G4S’s ‘workplace regulations’, and which included a ban on ‘engaging in any observance of such beliefs’) came into effect the day after Ms Achbita was dismissed: see paras 15 and 16 of the judgment. 14 Micropole’s letter dismissing Ms Bougnaoui ended with the memorable sentence, ‘We regret this situation as your professional competence and your potential had led us to hope for a long-term collaboration’ (see para 23 of my Opinion in that case). 15 This arrangement is possible, under Art 29(1) of the Court’s Rules of Procedure, ‘when the Court considers that a number of cases must be heard and determined by one and the same formation of the Court’. 16 Since we were going to present our Opinions on different days – AG Kokott on 31 May 2016 and I on 13 July 2016 – we politely agreed that I would not take unfair advantage of going second to critique her Opinion.

Religion in the Workplace  253 For Advocate General Kokott, Ms Achbita’s dismissal was certainly not direct ­discrimination17 and arguably not even indirect discrimination18 – but, if it was indirect discrimination, it was objectively justified by G4S’s desire to project a neutral business image;19 and the restrictions that the company’s policy imposed on its employees’ freedom to express their religion were proportionate.20 As far as I was concerned, Ms Bougnaoui’s dismissal was direct discrimination on grounds of religion;21 and ‘not wearing a hijab’ could not conceivably be fitted in under the derogation, in Article 4(1) of Directive 2000/78, for ‘genuine and determining occupational requirements’.22 In case the Court might consider the discrimination to be indirect rather than direct, I also examined that aspect, including the balancing of the respective rights of the employer and the employee.23 In G4S Secure Solutions, the Court began by examining the meaning of ‘religion’ in ­Article 1 of the directive and concluded that it ‘should be interpreted as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public’.24 That was an important, necessary and correct first step towards ensuring ‘effet utile’. The company rule required all employees to dress neutrally. It was not therefore directly discriminatory but might conceivably be indirectly discriminatory.25 After stating that ‘such a difference of treatment does not, however, amount to indirect discrimination within the meaning of Article 2(2)(b) of the directive if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary’,26 the Court proceeded to give extensive guidance to the national court, the thrust of which was – fairly clearly – that G4S’s policy was lawful.27 In particular, the Court considered that provided the company rule ‘covers only G4S workers who interact with customers … the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued’.28 The Court left the national court to assess whether G4S could

17 Opinion of AG Kokott in Case C-157/15 G4S Secure Solutions EU:C:2016:3, paras 39 to 48 and 56. AG Kokott later concluded that even if the company rule were directly discriminatory, it was probably justifiable under Art 4(1) of the directive (see her introductory remarks at paras 26 and 27 and 64 to 84). However, the Court firmly rejected that approach in ADDH (see below). 18 Opinion of AG Kokott in Case C-157/15 G4S Secure Solutions EU:C:2016:3, paras 49 to 55. AG Kokott then accepted, at para 57, that because of its consequences in practice such a rule may, if not justified, constitute indirect discrimination. 19 ibid, paras 59 to 63 and 87 to 95. AG Kokott went so far as to suggest that, in the case of a company like G4S, ‘a policy of neutrality is absolutely crucial’ (see paras 93 and 94). 20 ibid, paras 96 to 127. AG Kokott went on to examine whether the hijab ban protected the ‘rights of others’ (paras 130 to 139). Although I disagree strongly at a number of places with AG Kokott’s analysis of the proportionality of G4S’s company policy of neutrality, I give her full credit for engaging directly and openly with the issue. 21 My Opinion in Case C-188/15 ADDH EU:C:2016:553, para 88, reiterated at para 108. 22 ibid, paras 90–102. 23 ibid, paras 109–11 (indirect discrimination), 112–19 (legitimate aim) and 120–34 (proportionality/balancing of rights). 24 Judgment of 14 March 2017 in Case C-157/15 G4S Secure Solutions EU:C:2017:203, paras 25 to 28. 25 ibid, paras 29 to 34. 26 ibid, para 35. 27 ibid, paras 36 to 42. 28 ibid, para 43. This is ‘stage 3’ of the proportionality analysis. The Court is, however, completely silent as to the rationale or methodology behind balancing the two fundamental rights that were in conflict. The employer’s right to run his business appears to prevail unless the company rule extends to ‘backroom’ jobs as well (in which case, it would – as I understand the judgment – have been disproportionate).

254  Eleanor Sharpston have reassigned Ms Achbita to another job not requiring any visual contact with customers, rather than dismissing her.29 The final instruction to the national court is as follows: ‘It is for the referring court, having regard to all the material in the file, to take into account the interests involved in the case and to limit the restrictions on the freedoms concerned to what is strictly necessary.’30 However, no further guidance was given as to how, and on what basis, the national court was to carry out that exercise.31 ADDH rather rides on the coattails of G4S Secure Solutions. In its judgment, the Court carefully constructed a hypothetical link to a factual situation in which Micropole, like G4S, had a neutral company rule in force prohibiting the wearing of ‘any visible sign of political, philosophical or religious beliefs’.32 If those were the facts, the national court should apply the reasoning just handed down in G4S.33 If, however, the dismissal was not based on the existence of such an internal rule, it was then necessary to examine whether the (direct) discrimination was nevertheless lawful by reason of Article 4(1) of the directive.34 Here the Court closely followed the Opinion and was very clear that a ‘genuine occupational requirement’ within the meaning of that provision refers to a requirement that is objectively dictated by the nature of the activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer.35

The judgments were received with very mixed reviews. Some business sources were relieved that the Court had given priority, as they saw it, to business needs. They welcomed the findings that there had not been direct discrimination against a female Muslim and that the indirect discrimination was – as they read the ­judgment – relatively straightforward to justify. On the other hand, those who are critical of the ruling in G4S Secure Solutions argue that the Court provided a roadmap for employers to discriminate against religions they don’t like. Roughly speaking (they say) the recipe is as follows. Establish a company policy of neutrality, indicating that it is essential to your business model. Frame it clearly in advance, and make a clear cross-reference to that policy in the job advertisement. Those who are already observant Muslims (or Jews, or male Sikhs … ) will not apply in the first place. Anyone whom you hire who subsequently converts to one of those religions (or simply 29 Judgment of 14 March 2017 in Case C-157/15 G4S Secure Solutions EU:C:2017:203, para 43. 30 ibid. 31 When the case returned to the Cour de cassation (the referring court), that court overruled the ruling of the Ghent Labour Court at first instance and sent the case back to be retried in order to make the necessary findings of fact as to the consistency/neutrality of G4s’s policy of neutrality and the possible alternatives to dismissal. See www.unia.be/en/articles/the-achbita-case-before-the-court-again. 32 The material on the national court file, lodged at the Court’s registry, clearly supported a finding of direct discrimination. There was no company written policy of neutrality. There was also no material to explain why (apart from a commercial desire not to upset customers who did not want to have their computer system fixed by a woman software engineer wearing a hijab) Micropole would legitimately have needed to have such a policy. When the matter returned to the national court, it duly ruled in favour of Ms Bougnaoui. See the judgment of the Cour de cassation of 22 November 2017 (13-19.855), ECLI:FR:CCASS:2017:SO02484. 33 See previous footnote in relation to the absence of any material that would have begun to establish that the restriction on religious freedom was proportionate. 34 See paras 34 to 41 of the judgment of 14 March 2017 in Case C-157/15 G4S Secure Solutions EU:C:2017:203. 35 ibid, para 40.

Religion in the Workplace  255 becomes more observant in the practice of their existing religion) will not have a leg to stand on when you instruct them not to ‘manifest’ their religion and subsequently dismiss them for failing to obey that instruction. One of the more vocal critics, Joseph Weiler,36 argues that the Court’s judgment can best be explained by two big blind spots: the effects of 2000 years during which Christianity has been the dominant religion in Europe; and the effects of the Enlightenment. He is particularly scathing of the Court’s limited – he says, non-existent – analysis of proportionality and the balancing of rights. I think that it is a mistake to focus exclusively on G4S Secure Solutions and to ignore what the Court said in ADDH. The two cases progressed through the Court together. They were heard on the same day by the same formation of the Grand Chamber; and the two judgments were delivered on the same day. And in ADDH, the Court was very clear that if the facts (which are a matter solely for the national court) showed direct discrimination, that could not be excused by a desire to pander to a customer’s prejudices. That said, however, let me offer three reasons why I have concerns with the judgments in the ‘veil’ cases. First, it seems to me that – at a philosophical level – the Court did indeed essentially take a Christianity-based approach to what ‘manifesting’ one’s religion means. In so doing, it seems to have confused the (mandatory) requirements of practising certain (non-Christian) religions with the optional choice of manifesting (or not manifesting) one’s Christian belief in an overt way in the workplace. A Christian can choose whether or not to wear a little cross hanging on a chain round the neck; and if such a cross is worn, it can be displayed publicly or tucked discreetly inside the shirt. A male Sikh cannot wear his dastar (turban) discreetly. He either obeys the requirements of his religion and wears it, or he does not.37 An ordinary practising male Jew will wear a yarmulke (kippah) to cover his head when he prays on his own in his bedroom upon awaking in the morning. A very orthodox male Jew will, indeed, wear a tallit katan (the miniature version of a prayer shawl, worn underneath the shirt but with the fringes dangling visibly free) throughout the day, to remind him constantly of the mitzvot that he should be observing. Neither the Sikh nor (either category of) Jew is choosing overtly to ‘manifest’ their religion. Wearing a particular garment is part of the practice of their religion, not an optional manifestation of it. Neither can reasonably be asked not to worship God in the way that their religion mandates. As an aside: the Koranic instruction to women is to ‘dress modestly’ – not, specifically, to wear a hijab (or a niqab, or a burka). That may have helped to confuse matters. However, conflating religious belief (specifically protected by Directive 2000/78) and the more general expression of philosophical conviction or political affiliation (not so protected by the EU legislator) under the general heading of accepting a company’s right to promote a ‘policy of neutrality’ to maximise its profit line is less easy to explain away. Secondly, the G4S Secure Solutions judgment leaves space – some might say, a lot of space – for indirect discrimination. Provided that the employer has the intelligence to formulate an ostensibly neutral written company policy in advance and is able to put up

36 J Weiler, ‘Je suis Achbita!’, (2017) 15(4) International Journal of Constitutional Law 879. 37 I tried, indeed, to make precisely this point in my Opinion in Case C-188/15 ADDH EU:C:2016:553 (at para 30), but perhaps I did not spell it out clearly enough.

256  Eleanor Sharpston a plausible argument that such neutrality is necessary for its business model, it can then in practice go ahead and discriminate indirectly on grounds of religion. True, the judgment in G4S Secure Solutions stresses that the national court should ‘verify’ the justification advanced for indirect discrimination. In practice, how is that ‘verification’ meant to work? How closely is the national court meant to scrutinise the company’s argument, ‘Oh, but neutrality is essential to my business model’? What weight is to be ascribed to the particular characteristics of the employer involved (big? small? nature of business? type of customer?), as compared to the weight to be ascribed to the discriminatory treatment complained of? How is the national judge meant to assess these aspects of the case? What of the ancillary but important issue of whether there is an obligation (how great an obligation?) to retain ‘religious’ staff provided that, without it being too ‘burdensome’ for the employer, they can be hidden away from public view somewhere backstage out of sight? What does that ‘solution’ really do, either for their prospects of a normal career progression or for real tolerance and respect within society? Again as an aside: the dividing line between G4S Secure Solutions (carefully formulating a company rule of strict neutrality in advance – perhaps, in anticipation that one’s customers may be prejudiced?) and ADDH (reacting to expressed customer prejudice by getting rid of the employee whose religious practice is perturbing smooth customer relations) may sometimes be perilously thin. Thirdly, the judgment in G4S Secure Solutions is strikingly silent on what, to me, is the most difficult but nevertheless essential part of the exercise that the Court was required to perform in the ‘veil’ cases. Instances of (crude) direct discrimination like ADDH are, perhaps mercifully, relatively rare. Indirect discrimination is much easier to contrive, more insidious and equally (if not more) negative in its effects. The Court gives the national courts the responsibility for policing what is happening out there in the workplace and making sure that restrictions on freedom of religion are limited to what is strictly necessary.38 However, it signally omitted to give the national court any real guidance as to the criteria for evaluating the strength of the competing fundamental rights or deciding how to balance them in any particular case. Here, it is worth comparing and contrasting the Grand Chamber’s reasoning in Case C-83/14 Chez,39 where the national court asked whether Articles 2(1) and 2(2)(a) and (b) of Directive 2000/43 precluded the commercial practice by which, ‘to avoid damage’, electricity meters were positioned (very inconveniently) at heights of six to seven meters in the ‘Gizdova mahala’ district of the Bulgarian town of Dupnitsa, where many­ Bulgarian citizens of Roma origin lived, whereas elsewhere they were positioned lower than two meters above the ground. In a very careful and detailed ruling, the Court defined the scope of that directive broadly,40 gave a large hint to the national court that the practice

38 See judgment of 14 March 2017 in Case C-157/15 G4S Secure Solutions EU:C:2017:203, para 43 and the operative part, second para. 39 Opinion of AG Kokott in Case C-83/14 CHEZ Razpredelenie Bulgaria EU:C:2015:170; judgment of 16 July 2015, EU:C:2015:480. Allan Rosas also sat in that case. 40 See judgment of 16 July 2015 in Case C-83/14 CHEZ Razpredelenie Bulgaria EU:C:2015:480, paras 45–60 (on the definition of ‘discrimination on the grounds of ethnic origin’) and paras 61–69 (refusing to limit the EU law concepts of ‘unfavourable treatment’ and ‘particular disadvantage’ to ‘prejudice to rights or legitimate interests’) (as had been done in the national law transposition of the directive).

Religion in the Workplace  257 described amounted to direct discrimination41 and was equally liberal in its pronouncements on the key aspects (in that context) of indirect discrimination.42 Finally – unlike the judgment in G4S Secure Solutions – the Court gave clear and unequivocal guidance on how, properly and strictly, to apply the proportionality test and balance the interests of the electricity companies and of the (principally Roma) electricity consumers.43 On the basis of the ‘veil cases’, it would seem that the provisional answer to the question, ‘when is neutrality discrimination?’ is, ‘when the employer has not put in place a clear company rule and does not offer an explanation of why neutrality is important to its business plan’. If tolerance is to prevail and religious diversity to be accepted in the workplace, the Court will need to amplify what it has said thus far in the answers that it gives to any further references on this delicate topic. Let us hope that national courts do indeed make such references. The Grand Chamber soon had to deal with two more religion-and-employment conundrums.

IV.  Qualified Job Candidates without the ‘Appropriate’ Protestant Religious Affiliation and Divorced Remarrying Roman Catholic Physicians: When is Enforcing a Religious Ethos Acceptable? In Case C-414/16 Egenberger,44 the question was whether a church organisation could refuse to hire a person of no denomination, on the basis that because of the nature or context of the activities to be carried out, ‘a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’. A complicating factor was that German constitutional law adopted a very ‘hands-off ’ approach to what is done by religious societies and equivalent bodies.45 The post advertised by ‘Evangelisches Werk’ involved writing a report on the UN Convention on the Elimination of All Forms of Racial Discrimination. The conditions to be satisfied by candidates presupposed membership of a Protestant church or a church belonging to the Working Group of Christian Churches in Germany. Ms Egenberger was of no denomination. She applied and was shortlisted (from which I deduce that she was deemed reasonably well-qualified otherwise as a candidate), but she was not invited to interview and another candidate got the job. She brought proceedings claiming damages. Evangelisches Werk submitted that the specified church membership was a justified occupational requirement and that the adverse treatment of Ms Egenberger was permitted under Article 4(2) of Directive 2000/78.

41 ibid, paras 79–91. 42 ibid, paras 92–109. 43 ibid, paras 110–28. 44 Judgment of 17 April 2018 in Case C-414/16 Egenberger EU:C:2018:257. The Opinion of AG Tanchev is to be found at EU:C:2017:851. 45 Judgment of 17 April 2018 in Case C-414/16 Egenberger EU:C:2018:257, paras 9–12.

258  Eleanor Sharpston The Court held that a church or other similar organisation might not itself determine authoritatively the occupational activities for which religion, by reason of the nature concerned or the context in which it is carried out, constitutes a genuine, legitimate and justified occupational requirement.46 Allowing self-review by the church itself would deprive that review of effect.47 Rather, The objective of Article 4(2) of Directive 2000/78 is … to ensure a fair balance between the right of autonomy of churches and other organisations whose ethos is based on religion or belief, on the one hand, and, on the other hand, the right of workers, inter alia when they are being recruited, not to be discriminated against on grounds of religion or belief, in situations where those rights may clash. To that end, that provision sets out the criteria to be taken into account in the balancing exercise which must be performed in order to ensure a fair balance between those competing fundamental rights. In the event of a dispute, however, it must be possible for the balancing exercise to be the subject if need be of review by an independent authority, and ultimately by a national court.48

The Court thus expressly recognised that it would be necessary to strike a fair balance between competing rights that might clash – a welcome evolution from its silence on that very issue in the ‘veil’ cases. The Court went on to examine in careful detail the criteria to be applied in any particular case.49 It concluded that, Article 4(2) of Directive 2000/78 must be interpreted as meaning that the genuine, legitimate and justified occupational requirement it refers to is a requirement that is necessary and objectively dictated, having regard to the ethos of the church or organisation concerned, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organisation. That requirement must comply with the principle of proportionality.

Finally, the Court dealt with the delicate question of whether the national court was required, in a dispute between individuals, to disapply a provision of national law that was not in conformity with Article 4(2) of Directive 2000/78 – a question that it answered in the affirmative.50 The last member of the quartet, Case C-68/17 IR v JQ,51 concerned the dismissal of a divorced Roman Catholic physician who was a member of the senior management team at a Caritas hospital after his employers discovered that, contrary to the teachings of the Roman Catholic Church, he had remarried (without his first marriage being annulled by the Church). A staff member in a less senior grade, or a staff member who was a Protestant (or an atheist, or an agnostic) would not have been so dismissed.

46 ibid, paras 42–59. 47 ibid, para 46. 48 ibid, paras 51–53 (emphasis added). 49 ibid, paras 60–69. 50 See paras 70–82 of the judgment. 51 Judgment of 11 September 2018 in Case C-68/17 IR EU:C:2018:696. The Opinion of AG Wathelet is to be found at EU:C:2018:363. It may seem odd that both the employee’s and the employer’s name were anonymised; but that is how the reference arrived at the Court from the national court in Germany.

Religion in the Workplace  259 In its judgment, the Court made extensive use of its reasoning in Egenberger52 to put in place the same analytical framework as in that case. It reached the interim conclusion that a church or other public or private organisation the ethos of which is based on religion or belief can treat its employees in managerial positions differently, as regards the requirement to act in good faith and with loyalty to that ethos, depending on their affiliation to a particular religion or adherence to the belief of that church or other organisation only if, bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief is a genuine, legitimate and justified occupational requirement in the light of that ethos.53

It then proceeded to give guidance to the national court as to whether that test was satisfied.54 As in Egenberger, the Court indicated that, in disputes between individuals, the national court was required to disapply a provision of national law that could not be interpreted consistently with Article 4(2) of the directive.55 On the basis of Egenberger and IR v JQ, it would thus seem that the provisional answer to the question, ‘when is enforcing a religious ethos acceptable?’ is, ‘only when the employer can show to the satisfaction of the reviewing court that that is really, genuinely, objectively necessary – and the test is a strict one’.

V.  A Parting Reflection In both Egenberger and IR v JQ, the Court gave careful guidance to the national court as to what it should look for and what standards it should apply in exercising effective judicial control. The result is that, technically, both these judgments are significantly better than the ‘veil’ judgments at furthering the cooperation between the Court and national judges that is the cornerstone of the procedure under Article 267 TFEU. It is probable that the members of the Grand Chamber intended to apply the same essential principle in all four cases: namely, to promote a religion-neutral working environment. However, it seems to me – with all respect – that there is a basic dichotomy. In the two cases where the employer wished to discriminate on grounds of religion (Egenberger and IR v JQ), the Court was commendably strict in limiting the employer’s scope for so doing to its bare essentials, in laying down very clear criteria for the national court to apply and in ensuring adequate and effective judicial control. In contrast, in the two earlier ‘veil’ cases (G4S Secure Solutions and ADDH), the Court was – to me – worryingly lax in opening the door to potential indirect discrimination on grounds of religion under the guise of employer neutrality, inasmuch as it instructed the national judge to check whether the treatment meted out to the employee was objectively justified and proportionate and yet failed to give that judge any criteria to apply when balancing the economic fundamental right of the employer to engage profitably in business against the moral fundamental right of the employee to practice his religion. It is not much use telling the national judge that he

52 Judgment of 11 September 2018 in Case C-68/17 IR EU:C:2018:696, paras 43, 44, 45, 48, 50, 51, 52, 53, 54 and 60. 53 ibid, para 55 (emphasis added). 54 ibid, paras 56–60. 55 ibid, paras 62–71. Egenberger is cited at paras 63, 64, 67 and 69.

260  Eleanor Sharpston has to ensure adequate and effective judicial supervision if you do not give him the tools with which to do his job. In all cases like these, we (society, the courts … ) are dealing, like it or not, with a conflict between two fundamental rights. In the two ‘veil’ cases, the employer was asserting its fundamental right to be overtly ‘neutral’ in order to run a profitable business, at the expense of two female Muslim employees who wished to exercise their freedom to practise their religion. In Egenberger and IR v JQ, the employer wished to impose its religious ­Weltanschauung on its employees, whilst the job candidate wished to be considered irrespective of her absence of ‘appropriate’ religious affiliation (Egenberger), and not to lose his job merely because he was lax in his religious practice (IR v JQ). Where, in a liberal, tolerant, Western twenty-first-century society, is that delicate balance between competing rights to be struck?

18 The Impact of Austerity on the Protection of Human Rights PHILIP ALSTON

I. Introduction When should international human rights bodies decide to consider allegations that a government’s adoption of particular economic austerity measures constitutes a violation of its human rights obligations? What degree of causal link would need to be established, and when should traditional forms of deference to governmental choices in the economic and social sphere give way to a heightened form of scrutiny? Given the increasing prominence of austerity, or ‘fiscal consolidation’ as agencies such as the International Monetary Fund now prefer to call it, this issue will demand more careful consideration in the years ahead. As various of the precepts of neoliberal economics have become more accepted, austerity has become a central part of the economic and social landscape in a wide range of situations in countries all around the world. The topic seems particularly apposite for a festschrift in honour of Allan Rosas, given that it combines two of the key areas in which he has excelled, in the course of a highly distinguished career. Long before his formal entrance on to the European Union stage, Allan was a leading scholar, not only in Finland but also internationally, in both human rights law and international humanitarian law. In the former field he was also one of the relatively small group of proponents of the central importance of economic, social and cultural rights, which are generally assumed to be the rights that are most directly affected by policies of austerity. After he joined the European Commission Legal Service as Principal Legal Adviser and then Deputy Director-General, and subsequently became a judge at the Court of Justice of the European Union, he devoted much of his analytical energies to adjudicating cases challenging aspects of economic policies adopted by or within the EU, some of which inevitably involved the intersection of fundamental rights and respect for the EU’s fiscal policy constraints. The analysis that follows begins with an attempt to define what we mean by austerity. It then provides a detailed, and in some respects first-hand, review of the austerity-driven policies that have been pursued in the United Kingdom in recent years, and of some of the results that have followed. Scholarly analyses of issues related to international human rights law are often preoccupied with finer jurisprudential considerations of case law and of the various other pronouncements that emanate from non-judicial bodies that play an

262  Philip Alston important role in monitoring state conduct. While those are certainly relevant for present purposes, it seems important to have a reasonably comprehensive understanding of the policies adopted in the UK in order to provide the necessary backdrop for a consideration of how international human rights bodies should respond to austerity, especially in situations that do not involve the imposition of such an approach by external actors. Following the details of the UK case, the chapter then considers the approach to austerity that has been taken by the Council of Europe and its various constituent parts before comparing this to the approach taken by United Nations human rights bodies, including those monitoring compliance with treaty obligations and those established under the so-called Special Procedures system. It concludes by asking whether these approaches are adequate for responding to the nature and scale of the challenges posed by austerity.

II.  Defining Austerity There are many definitions of austerity, both in terms of its everyday meaning and its use by economists. The Cambridge English Dictionary, for example, offers several definitions. The first relevant one is ‘the condition of living without unnecessary things and without comfort, with limited money or goods, or a practice, habit, or experience that is typical of this’. By way of illustration it mentions wartime austerity and the austerity of living in a small rural community. The second relevant definition relates to ‘a difficult economic situation caused by a government reducing the amount of money it spends’.1 The Oxford Dictionary adds a third dimension: ‘Sternness or severity of manner or attitude’.2 The breadth and heterogeneity of these definitions have led economists to develop a more carefully tailored definition that focuses essentially on measures taken to reduce ‘structural deficits’ that confront governments.3 But even within this narrower approach, there would seem to be important differences between contexts that involve a response to a crisis that demands immediate and sometimes unavoidably harsh policies and those that are the result of longer-term policy commitments to achieve a balanced budget or to free up more resources to stimulate growth and investment. In Europe, for example, the focus has to date primarily been upon those countries which faced emergency bailouts as a result of the global financial recession of 2007–08 and which were obliged to slash most forms of public spending. They include Greece, Portugal and Ireland, and the group might also be expanded to include Spain, Italy and other states. But there is an important distinction to be drawn between austerity that is more or less imposed upon a state through the actions of external actors, such as other states, banks, or international financial institutions, and austerity that is embraced or adopted by a government as a preferred economic policy despite the absence of any tangible external pressure (even if external financial market demands will inevitably be invoked by the proponents of the policy). In practice, the demands of fiscal consolidation are now a rather consistent part of the prescriptions directed at the great majority of countries by the leading economic and 1 ‘Austerity’, at https://dictionary.cambridge.org/dictionary/english/austerity. 2 ‘Austerity’, at https://en.oxforddictionaries.com/definition/austerity. 3 ‘Fiscal policy: What is austerity?’, The Economist, 20 May 2015, at https://www.economist.com/buttonwoodsnotebook/2015/05/20/what-is-austerity.

The Impact of Austerity on the Protection of Human Rights  263 financial institutions, ranging from the International Monetary Fund to the Organisation for Economic Cooperation and Development.4 For some countries, fiscal consolidation – which is in effect a euphemism for austerity – will be the only way in which they can attract the loans they need to restore a balanced economy and to bring their debt burdens under control. But for others, austerity is seen more as a choice among a range of macroeconomic policy options that are available to them. In my view, it is also important to examine situations in which states have essentially adopted long-term austerity with only a very temporary impetus from ‘crisis’ discourse. In this connection, the United Kingdom presents a particularly important case study.

III.  A Case Study of the United Kingdom In November 2017, a group of researchers at University College London published an article in the British Medical Journal that studied the impact of a set of austerity policies that the United Kingdom Government had first introduced in 2010. It concluded that cuts to funding for the National Health Service and to a range of other public services had led to the deaths in England between 2010 and 2017 of 120,000 more people than would have been expected if previous trends in death rates had been maintained. The authors also predicted that a further 75,000 excess deaths could occur by 2020 if existing policies were not s­ ignificantly changed.5 While some politicians challenged the analysis, it was widely considered to be plausible,6 and the media presented the study as evidence to justify claims that ‘Austerity Kills’,7 that Tory policies amount to ‘economic murder’,8 and that ‘Government policy is killing people’.9 In total, the story was tweeted 4,207 times, reported in 19 news outlets and commented on in 12 blogs. It was one of the most widely publicised stories carried in recent years by the British Medical Journal.10 At around the same time, the Office for National Statistics released results showing that life expectancy rates had stalled in England, with a sharp drop in the annual improvement that had been experienced every year since such records had begun to be kept, and an actual drop for certain groups.11 Based on figures from previous ONS studies, other researchers drew a direct connection between reduced life expectancy and forms of inequality that affected lower-income groups in England. They concluded that the most economically

4 ‘The International Monetary Fund and its impact on social protection’, Report of the Special Rapporteur on extreme poverty and human rights, Philip Alston, UN Doc A/HRC/38/33 (2018). 5 J Watkins, W Wulaningsih, C Da Zhou, et al, ‘Effects of Health and Social Care Spending Constraints on Mortality in England: A Time Trend Analysis’, BMJ Open 2017;7:e017722. doi: 10.1136/bmjopen-2017-017722 (15 Nov 2017). 6 For a ‘fact check’ analysis see ‘Is austerity linked to 120,000 unnecessary deaths?’, Fact Check, 17 Nov 2017, https://fullfact.org/health/austerity-120000-unnecessary-deaths/. 7 Owen Jones, ‘Austerity kills: this week’s figures show its devastating toll’, The Guardian, 8 Aug 2018, www. theguardian.com/commentisfree/2018/aug/08/austerity-kills-life-expectancy-standstill-britain. 8 ‘“Economic murder”: Senior UK public health researchers say 120,000 people died under Tory austerity’, 16 Nov 2017, https://boingboing.net/2017/11/16/there-is-no-alternative.html. 9 Centre for Welfare Reform, ‘Government policy is killing people’, 17 Nov 2017, www.centreforwelfarereform. org/news/government-plling-people/00348.html. 10 Statistics are from Altmetric, https://bmj.altmetric.com/details/28978844. 11 Office for National Statistics, National life tables, UK: 2015 to 2017, 25 September 2018.

264  Philip Alston deprived communities were experiencing no life expectancy gain, and that the underlying inequalities could be attributed to ‘a diverse group of diseases that can be effectively prevented and treated,’ but that were not being addressed in practice. In their view, equitable health and social care policies could ‘postpone deaths into older ages for all communities and reduce life expectancy inequalities’.12 Putting these stories together enables us to see the existence of some sort of consensus on the part of the academic community, technical government agencies, and the media attributing falls in life expectancy to policies that have been pursued by the UK Government for the last decade under the rubric of austerity. The question that then arises is how the international human rights regime has to date coped with these issues, and how it might in the years ahead. At least since the global financial recession in 2007–08, and especially as a result of the fiscal crises in a number of countries and particularly Greece, the subject of austerity has been accorded considerable attention in human rights circles. But the United Kingdom case is the principal focus of the present analysis not only because of the extent to which the government has very intentionally pursued policies designed to implement an austerity policy but because that policy was chosen despite the existence of a range of other alternatives and without the sort of external pressure from international financial institutions or global markets that has generally been the trigger in most other countries undergoing austerity. In my capacity as United Nations Special Rapporteur on extreme poverty and human rights I made an official visit to the UK at the invitation of the government for a period of almost two weeks in December 2018. The following observations on the policy challenges confronting the UK draw upon the extensive research undertaken for that mission as well as on a large number of meetings with a wide range of government officials, civil society groups, people living in poverty, and scholars and think-tank experts. The UK began its experiment with what are now known as neoliberal economic policies in 1979 when Margaret Thatcher became Prime Minister. Between that year and 2012, the bottom 50 per cent of the income distribution received only 10 per cent of overall income growth. While the lowest three deciles gained almost nothing, almost 40 per cent on the total went to those in the top decile.13 This period was initially characterised by widespread privatisation of state assets and enterprises, extensive deregulation, cutbacks in certain benefits, and the imposition of the so-called bedroom tax on those receiving government benefits but living in accommodation which was larger than absolutely necessary for the number of people in the household. But the Labour Government that was in power from 1997 to 2010 ended by making a concerted and successful push against child poverty and ‘pensioner’ poverty (covering those who had reached the retirement age and who relied upon a state pension to survive). In 2010, a coalition government came to power with David Cameron as the Conservative Party Prime Minister and George Osborne as Chancellor (finance minister). They almost immediately launched what was characterised at the time as

12 James E Bennett et al, ‘Contributions of Diseases and Injuries to Widening Life Expectancy Inequalities in England from 2001 to 2016: A Population-Based Analysis of Vital Registration Data’, Lancet Public Health, 22 Nov 2018, http://dx.doi.org/10.1016/ S2468-2667(18)30214-7. 13 Prosperity and Justice: A Plan for the New Economy, The Final Report of the IPPR Commission on Economic Justice (Cambridge, Polity Press, 2018) 13.

The Impact of Austerity on the Protection of Human Rights  265 ‘the longest, deepest, sustained period of cuts to public services spending at least since the second world war’.14 This was all done under the rubric of austerity.15 Eight years later the results of these policies were relatively low levels of unemployment and impressive economic growth rates, at least until the impact of the Brexit referendum began to be felt. But the other side of the austerity balance sheet was less positive. In 2018, 14 million people, a fifth of the population, were living in poverty, according to official statistics. Four million of these were more than 50 per cent below the poverty line,16 and 1.5 million were destitute, defined as being unable to afford basic essentials.17 The widely respected Institute for Fiscal Studies predicted a 7 per cent rise in child poverty between 2015 and 2022, and various sources predicted child poverty rates of as high as 40 per cent.18 The human face of these statistics could be seen in the immense growth in food-banks and the queues waiting outside them, record numbers of people sleeping rough in the streets, a strong growth in homelessness, and a sense of deep despair that prompted the Government to appoint a Minister for Suicide Prevention and Civil Society to report in depth on unheard of levels of loneliness and isolation. As a result of drastic cuts to local authorities’ funding, especially in England, libraries closed in record numbers, community and youth centres were shrunk and underfunded, and some public spaces and buildings such as parks and recreation centres were sold off. The costs of austerity in the UK, and especially in England where, unlike the approach adopted in Scotland and Northern Ireland, few attempts were made to mitigate the impact on the worse-off, have fallen disproportionately upon the poor, women, racial and ethnic minorities, children, single parents, and people with disabilities. The changes to taxes and benefits since 2010 have been highly regressive, and the policies have taken the highest toll on those least able to bear it. The Equalities and Human Rights Commission has calculated that while the bottom 20 per cent of earners will have lost on average 10 per cent of their income by 2021/22 as a result of these changes, top earners have actually come out ahead. Between 2010 and 2020 it will have been Black and Asian households in the lowest fifth of incomes who will have experienced the largest average drop in living standards, amounting to about 20 per cent.19 Women are particularly affected by poverty and austerity policies have tended to perpetuate rather than tackle the gendered aspects of poverty. Women in the UK earn less than men, shoulder a greater amount of unpaid labour, and are more likely to experience poverty.20 Single female pensioners consistently experience poverty at a higher rate

14 Larry Elliott and Katie Allen, ‘Budget brings longest, deepest cuts since second world war, IFS says’, The ­Guardian, 23 June 2010, www.theguardian.com/uk/2010/jun/23/budget-longest-deepest-cuts-ifs. 15 For a detailed analysis see Nicholas Timmins, The Five Giants: A Biography of the Welfare State, 3rd edn (London, Harper Collins, 2017) ch 24, ‘Austerity Bites: the coalition and Conservatives 2010–16’. 16 Social Metrics Commission, A New Measure of Poverty for the UK, September 2018, https://socialmetricscommission.org.uk/MEASURING-POVERTY-FULL_REPORT.pdf, p 97. 17 Joseph Rowntree Foundation, Destitution in the UK 2018, 7 June 2018, www.jrf.org.uk/report/destitutionuk-2018, pp 2–3. 18 Institute for Fiascal Studies, Living Standards, Poverty and Inequality in the UK: 2017–18 to 2021–22, 2 ­November 2017, ifs.org.uk/publications/10028. 19 Runnymede Trust, Intersecting Inequalities: The Impact of Austerity on Black and Minority Ethnic Women in the UK, www.runnymedetrust.org/uploads/PressReleases/1%20bme_executive_summary-A3-01.pdf. 20 Women’s Budget Group, The Female Face of Poverty, July 2018, http://wbg.org.uk/wp-content/uploads/ 2018/08/FINAL-Female-Face-of-Poverty.pdf, pp 7, 15–16.

266  Philip Alston than others.21 In 2018, women were paid 17.9 per cent less per hour on average than men,22 made up 60 per cent of the workers receiving low pay23 and were disproportionately engaged in part-time work with little wage progression.24 Changes to tax and benefit policies made since May 2010 will by 2021/22 have reduced support for women far more than for men.25 Single parents, 90 per cent of whom are women, are more than twice as likely to experience persistent poverty as any other group, and 50 per cent of children in single parent households are in poverty.26 A range of benefits changes have had a stark impact on single parents. Single parents in the bottom 20 per cent of income will have lost 25 per cent of their 2010 income by 2021/22 as a result of changes to tax and benefit policies, and the poverty rate for children in single-parent households will jump to a shocking 62 per cent by then.27 As noted earlier, since 2011 life expectancy has stalled for women in the most deprived half of English communities, and actually fallen for women in the poorest 20 per cent of the population.28 Single pensioners are also driving the uptick in pensioner poverty, and are significantly more likely to be women. Children have also been hit hard by austerity policies. Many of the recent changes to social support in the UK have a disparate impact on children. The Equality and Human Rights Commission forecasts that another 1.5 million more children will fall into poverty between 2010 and 2021/22 as a result of the changes to benefits and taxes, a 10 per cent increase from 31 per cent to 41 per cent.29 Sanctions against parents can have unintended consequences on their children. According to the Social Metrics Commission, almost a third of children in the UK live in poverty.30 After years of progress, child poverty is rising again, and expected to continue increasing sharply in the coming years.31 According to Child Poverty Action Group, the child benefit will have lost 23 per cent of its real value between 2010 and 2020, due to sub-inflationary uprating and the current freeze. And ­low-paid jobs and stagnant wages have a direct effect on children, with families where two adults earn the minimum wage still falling short of the adequate income needed to raise a child.32 Because of changes to benefits and taxes, the Equality and Human Rights ­Commission

21 Joseph Rowntree Foundation, UK Poverty 2018: A comprehensive analysis of poverty trends and figures (2018) 13–14. 22 Office for National Statistics, Gender Pay Gap in the UK: 2018, www.ons.gov.uk/employmentandlabour​ market/peopleinwork/earningsandworkinghours/bulletins/genderpaygapintheuk/2018#gender-pay-gap-data. 23 Resolution Foundation, Low Pay Britain 2018, www.resolutionfoundation.org/app/uploads/2018/05/­LowPay-Britain-2018.pdf. 24 M Costa Dias et al, Wage Progression and the Gender Wage Gap: The Causal Impact of Hours of Work, Institute for Fiscal Studies, 2018, www.ifs.org.uk/publications/10358. 25 The Cumulative Impact of Tax and Welfare Reforms, March 2018, Equality and Human Rights Commission, at equalityhumanrights.com/sites/default/files/cumulative-impact-assessment-report.pdf, p 99. 26 UK Poverty 2018 (n 21), 4. 27 Cumulative Impact (n 25), 19, 25, 82, 153, 165. 28 Bennett (n 12), 590. 29 Cumulative Impact (n 25). 30 A New Measure of Poverty for the UK (n 16), 111. 31 Institute for Fiscal Studies, ‘Living standards, poverty and inequality in the UK: 2017–18 to 2021–22’, 2 November 2017, www.ifs.org.uk/publications/10028, p 15. 32 Child Poverty Action Group, ‘The Cost of a Child in 2018’, August 2018, www.cpag.org.uk/sites/default/files/ uploads/CostofaChild2018_web.pdf, p 16.

The Impact of Austerity on the Protection of Human Rights  267 projects the poverty rate for children in single parent households to jump to 62 per cent by 2021/22.33 Nearly half of those in poverty, 6.9 million people, are from families in which someone has a disability.34 People with disabilities are more likely to be in poverty, and are more likely to be unemployed, in insecure employment, or economically inactive.35 They have also been some of the hardest hit by austerity measures. As a result of changes to benefits and taxes since 2010, some families with disabilities are projected to lose £11,000 on average by 2021/22, more than 30 per cent of their annual net income.36 People with disabilities commonly report superficial benefits assessments that led to findings that contradicted the professional opinion of their doctor but were used as a justification for eliminating or greatly reducing benefit entitlements. Those who have retired from the workforce and rely on a state pension are another ­especially vulnerable group. Between 2012/13 and 2016/17, the number of pensioners living in poverty rose by 300,000.37 Finally, destitution is built into the asylum system that has emerged during the period of austerity. Asylum-seekers are banned from working and limited to a derisory level of support that guarantees they will live in poverty. The government promotes work as the solution to poverty, yet refuses to allow this particular group to work. While asylum-seekers receive some basic support such as housing, they are left to make do with an inadequate, poverty-level income of around £5 a day.38 For those who have no recourse to public funds as a result of their immigration status, the situation can be particularly difficult; such individuals face an increased risk of exploitation and restricted access to educational opportunities.

IV.  Austerity as a Policy Choice Much of the political debate around UK economic and social policies since 2010 has focused on specific economic and efficiency-related goals that the government has identified, including: a commitment to place employment at the heart of anti-poverty policy; a quest for greater efficiency and cost savings; a determination to simplify an excessively complicated and unwieldy benefits system; a desire to increase the uptake of benefits by those entitled to them; removing the ‘welfare cliff ’ that deterred beneficiaries from seeking work; and a desire to provide more skills training. But the many far-reaching changes to the role of the British government in supporting people in distress have also been consistently promoted as being part of an unavoidable

33 Cumulative Impact (n 25), 19, 25, 82, 153, 165. 34 A New Measure of Poverty for the UK (n 16), 84. 35 Equality and Human Rights Commission, ‘Is Britain Fairer? The state of equality and human rights 2018’, www.equalityhumanrights.com/sites/default/files/is-britain-fairer-2018-pre-lay.pdf, pp 38, 46, 52. 36 Cumulative Impact (n 25). 37 Joseph Rowntree Foundation, UK Poverty 2017: Country Reaches Turning Point after Rises in Child and Pensioner Poverty (2017). 38 Lift the Ban, ‘About’, http://lifttheban.co.uk/.

268  Philip Alston programme of fiscal ‘austerity’, needed to save the country from bankruptcy. Although the economic situation of the UK coming out of the 2008 recession was far from optimal, it is clearly questionable whether the bankruptcy metaphor has any validity. A range of similarly situated countries, notably including the United States and Australia, also faced major challenges coming out of the same crisis and opted to pursue policies of economic stimulation in order to restore both economic growth and fiscal balance. If a thorough financial accounting were to be undertaken to examine the costs and benefits of the UK’s preference to pursue austerity rather than stimulation it would be important to take account of the fact that the fallout from reforms has almost certainly cost the country a great deal. The many billions advertised as having been withdrawn from the benefits system since 2010 have been offset by the additional resources required to fund emergency services by families and the community, by local government, by doctors and hospital accident and emergency centres, and even by the ever-shrinking and under-funded police force. But the more important question for present purposes is whether the policies of austerity that were put in place in 2010 and continue in 2019 in a very different economic context were primarily driven by economic or fiscal considerations or were actually motivated by a commitment to achieving radical social re-engineering. Successive British governments since 2010 have in fact brought revolutionary change in both the system for delivering minimum levels of fairness and social justice to the British people, and especially in the values underpinning it. Key elements of the post-war Beveridge social contract have been overturned. In the process, some good outcomes in terms of efficiency and encouraging greater self-sufficiency have certainly been achieved, but great misery has also been inflicted, especially on the working poor, on single mothers struggling against all the odds, on people with disabilities who were already marginalised, and on millions of children who continue to be locked into a cycle of poverty from which most will have great difficulty escaping. In many respects, it is the underlying values and the ethos shaping the design and implementation of specific measures that have generated the greatest problems. The government has frequently proclaimed its determination to change the value system to focus more on individual responsibility, to place major limits on government support, and to pursue a single-minded focus on getting people into employment, seemingly regardless of the costs. While the pros and cons of many aspects of this programme are legitimate matters for political contestation, many of the reforms have been informed by an ethos that has wrought considerable harm to the fabric of British society. British compassion for those who are suffering has been replaced by a punitive, mean-spirited, and often callous approach apparently designed to instil discipline where it is least useful, to impose a rigid order on the lives of those least capable of coping with today’s world, and elevating the goal of enforcing blind compliance over a genuine concern to improve the wellbeing of those at the lowest levels of British society. This detailed description of what austerity looks like in the UK context provides the backdrop against which to consider how such issues have been dealt with, if at all, by the leading international actors in the human rights field.

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V.  The Response to Austerity on the Part of Human Rights Bodies A.  The Commissioner and the Parliamentary Assembly of the Council of Europe At first glance, it appears that the key human rights actors within the Council of Europe have given a lot of thought to the question of how austerity should be factored into their analyses. The Council of Europe Commissioner for Human Rights, for example, has a webpage that suggests that austerity policies threaten ‘over six decades of social solidarity and expanding human rights protection across Council of Europe Member States’. The analysis notes that ‘The whole spectrum of human rights has been affected’, that ‘many vulnerable groups of people have been hit disproportionately’, and that the economic crisis generating austerity policies is ‘undermining the capacity of central and local authorities to ensure human rights protection’.39 The Commissioner also commissioned and published an ‘Issue Paper’ focusing on austerity. It lists a range of recommendations that the Commissioner explicitly directs to Council of Europe Member States. They include a call for the institutionalisation of ‘transparency, participation and public accountability throughout the economic and social policy cycle’, as well as a call to ‘engage and empower national human rights structures in responses to the economic crisis’.40 Such a strong approach would seem to suggest that the challenges associated with austerity would form an important part of the country-specific analyses prepared by the Commissioner. But in practice it seems that the only detailed application of these concerns has taken place in relation to the challenges facing the Greek Government. In a 2016 report, the Commissioner focused especially on the plight of persons with intellectual and ­psycho-social disabilities, which led her to make the following statement: I am fully aware of the drastic economic constraints and limited margin of manoeuvre of the Greek authorities, however I urge them and their international lenders to spare health care, in particular psychiatry, from further budgetary cuts while negotiating and designing austerity measures.41

At the end of a follow-up mission two years later the Commissioner broadened her focus very considerably to examine the impact of austerity on health, education, employment, housing and other related human rights issues. She notes that ‘successive austerity packages have severely affected the population’, the number of homeless persons has almost ­quadrupled in recent years, the number of people visiting soup kitchens was up to nearly half a million in 2016, ‘the health-care system’s capacity to respond to the medical needs of

39 ‘Economic crisis and human rights’, www.coe.int/en/web/commissioner/thematic-work/economic-crisis. 40 Safeguarding Human Rights in Times of Economic Crisis, Issue Paper published by the Council of Europe Commissioner for Human Rights (2013) 9–12. 41 ‘Greece: progress in combating racism, but concerns remain about the impact of austerity’, 8 July 2016, www.coe. int/en/web/commissioner/-/greece-progress-in-combating-racism-but-concerns-remain-about-the-impact-ofausterity?inheritRedirect=true&redirect=2Fen%2Fweb%2Fcommissioner%2Fthematic-work%2Feconomic-crisis.

270  Philip Alston the general population’ had been crippled, and that the rights of persons with disabilities had been severely affected.42 This is an impressive recounting of the negative effects of austerity on respect for human rights. But it also remains somewhat anomalous, in the sense that the Commissioner does not appear to have devoted significant attention to the impact of austerity in other countries that she has visited. Her Annual Report for 2018 indicates that Greece was the only country in which austerity was considered to have been a major concern.43 The topics of interest to the Commissioner in recent years in relation to the United Kingdom have included surveillance and oversight techniques, the age of criminal responsibility, and the rights of asylum-seekers.44 For its part, the Parliamentary Assembly of the Council of Europe has also attached major importance to the consequences of austerity. But once again, its strongest and most direct engagement has been limited to the Greek case. According to the Parliament’s Monitoring Committee, austerity in Greece has had ‘severe consequences on democratic institutions and the judiciary’ (para 65), exacerbated ‘inequalities and ingrained discrimination practices’ (para 85), and ‘led to a rapid deterioration of living standards [and] the dismantling of the welfare state’ (para 104). But rather than drawing any important conclusions on alternative options or the responsibility of actors other than the government, the Monitoring Committee concludes its report by encouraging the authorities ‘to pay further attention to the severe impact of the austerity measures on the enjoyment of social rights in Greece’ (para 117).45 By way of comparison, a report on Ireland prepared at the same time confined itself to the observation that the country ‘remains affected by the consequences of the 2008 financial crisis and subsequent austerity measures, which can still be felt on individuals and society and has had an adverse effect on the exercise of human and social rights’.46 But there are clearly many different political currents at play in this regard. One insight into these is provided by a ‘feasibility study’ undertaken by the governmental group of experts composing the Council of Europe’s Steering Committee for Human Rights. In 2014 it agreed to appoint a Rapporteur from Greece to oversee the preparation of a report on aspects of ‘the impact of the economic crisis on human rights in Europe’. But in doing so, the Committee engaged at the outset in a contentious debate over whether the existing normative and institutional framework was already adequate to deal with the new issues or whether additional steps should be taken. After a thorough review of some of the negative impacts of austerity, the final report reflects both positions and leaves it up to the Committee of Ministers to decide on any further action. Unsurprisingly, there does not appear to have been any meaningful follow-up.47 42 Report of the Commissioner for Human Rights of the Council of Europe, Dunja Mijatović, Following her Visit to Greece from 25 to 29 June 2018, Doc CommDH(2018)24 (6 November 2018). 43 Commissioner for Human Rights of the Council of Europe, Dunja Mijatović, Annual Activity Report 2018, 2019CommDH(2019)11 (1 April 2019). 44 Website of the Commissioner, under United Kingdom documents. 45 Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), ‘The progress of the Assembly’s monitoring procedure (January-December 2017) and the periodic review of the honouring of obligations by Estonia, Greece, Hungary and Ireland’, Periodic review: Greece, Doc 14450 Part 3 (GR), 14 December 2017. 46 ibid, Periodic review: Ireland, Doc 14450 Part 5 (IE)14 December 2017, para 96. 47 The Impact of the Economic Crisis and Austerity Measures on Human Rights in Europe: Feasibility Study, Adopted by the Steering Committee for Human Rights (CDDH) on 11 December 2015.

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B.  The European Committee of Social Rights A recent review of the jurisprudence generated by the independent expert committee established to monitor compliance with the European Social Charter indicates that it too has developed most of its relevant policies in the context of complaints relating to the situation in Greece. In that setting the Committee has been consistent in upholding social rights in the context of both pension entitlement and labour law cases. It has relied significantly on due process requirements to press the state to ensure that its procedures give careful consideration to less restrictive measures that those adopted.48 It has also upheld the notion of a floor of required social protection and, significantly, has ‘concluded that cuts in social protection which breach ESC rights cannot be justified on the basis that they are required by virtue of an international agreement or under EU law’.49 A former member of that committee has, however, suggested that those hoping that austerity measures will be subjected to effective scrutiny should not draw too much encouragement from these decisions. He has noted that the Committee’s jurisprudence remains marginalised within European political and legal discourse, and continues to be overshadowed by the approach of the European Court of Human Rights. As a result, in his view, the notion of a ‘social Europe’ is largely hollow, and ‘the European commitment to social rights is essentially rhetorical in nature, and their partial constitutionalisation remains an incomplete project.’50

C.  The European Court of Human Rights Considerable scholarly attention has already been given to the response by the Court to austerity-related issues,51 and the Court also has its own very useful Factsheet on the subject.52 In essence, there is a noteworthy difference between its approach to traditional civil and political rights issues and those relating to social rights. In the former type of cases, dealing with issues such as sub-standard prison conditions or aspects of a fair trial including delays in the administration of justice or in the payment of sums awarded by the court, it has maintained its traditional reluctance to take account of financial considerations. This has been the case even where a government claims that unavoidable fiscal constraints are to blame for the impugned policy. But where pension cuts or social benefit reductions are involved, and the consideration occurs under the rubric of the right to property or the right to privacy, the Court has given a very wide margin of appreciation to the government. A good illustration of the Court’s approach is to be found in McDonald v The United Kingdom, in which the level of assistance provided to a woman in need of care by a local council in London had been cut and the applicant made a claim under Article 8 of the 48 Eva Brems, ‘Protecting Fundamental Rights during Financial Crisis: Supranational Adjudication in the Council of Europe Context’ (July 16, 2018), https://ssrn.com/abstract=3214689. 49 Colm O’Cinneide, ‘Austerity and the Faded Dream of a “Social Europe”’, in Aoife Nolan (ed), Economic and Social Rights after the Global Financial Crisis (2014) 169, at 198. 50 ibid, 200. 51 See Brems (n 48); D Kagiaros, ‘In search of a “social minimum”: Austerity and destitution in the European Court of Human Rights’ (2019) 25 European Public Law (forthcoming). 52 European Court of Human Rights, Press Unit, Factsheet: Austerity Measures (July 2018).

272  Philip Alston Convention that this had constituted an unjustifiable and disproportionate interference with her right to respect for her private life and had also exposed her to considerable indignity. The starting point for the Court’s analysis was that in cases of this sort, states parties have a wide margin of appreciation ‘in issues of general policy, including social, economic and health-care policies’, and that the ‘margin is particularly wide when … the issues involve an assessment of priorities in the context of the allocation of limited State resources’. Going even further in the direction of almost total deference, the Court then observes that because the state is uniquely familiar with both the demands made on its health care system and the available budget, ‘the national authorities are in a better position to carry out this assessment than an international court’. Then, after an inquiry that would clearly be inadequate if used by courts which adjudicate social rights claims, the European Court expressed its satisfaction that the UK courts had ‘adequately balanced the applicant’s personal interests against the more general interest of the competent public authority in carrying out its social responsibility of provision of care to the community at large’. It then went on to double down on its deference by observing that ‘it is not for this Court to substitute its own assessment of the merits of the contested measure … for that of the competent national authorities … unless there are shown to be compelling reasons for doing so’. While defenders of this long-established jurisprudence would point out that the court is not dealing with social rights, but rather with civil rights, the reality is that the Court’s formal embrace of the positive, rather than just the negative, aspects of those rights will eventually require it to engage meaningfully with the resource dimensions and to develop a level of scrutiny which goes beyond almost automatic deference in the absence of truly dramatic (‘compelling’) circumstances. Another problematic aspect of the Court’s formulation is the way in which the human rights of the applicant (under Article 8) are characterised as mere ‘personal interests’ (it would presumably not talk about the personal interest to be free from degrading punishment). These are then weighed against ‘the more general interest’ of the government. Leaving aside the fact that the outcome of any balancing expressed in these terms is likely to be a foregone conclusion, it is quite striking that the characterisation of the situation highlights the ‘interests’ of one single individual against the interest of the state as a whole. Some scholars have been critical of this dimension of the Court’s jurisprudence,53 while others have questioned the general reluctance of courts to engage in the adjudication of social rights and have argued that a more rigorous approach need not involve hard-line enforcement but could focus more on facilitating a dialogic approach.54

D.  The United Nations i.  The Committee on Economic, Social and Cultural Rights Almost from the outset, the UN Committee on Economic, Social and Cultural Rights, which monitors states parties’ implementation of the Covenant on Economic, Social and Cultural 53 Brems (n 48). 54 Husnain Nasim, ‘Economic Austerity, Human Rights and Judicial Deference: A Case for a More Rigorous Judicial Role’ (2016) 1 LSE Law Review 32.

The Impact of Austerity on the Protection of Human Rights  273 Rights, sought to take account of the impact of ‘structural adjustment’, which was the name used by the IMF and other key actors in the late 1980s. In its 1990 General Comment that laid out the essential framework within which its monitoring would thereafter take place, it emphasised that ‘even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected’.55 It must be said, however, that while the theory was good, the subsequent practice was not especially strong. Indeed, it was not until 2012, and some four years after the global financial recession of 2007–08, that the Committee really spelled out the practical implications of its approach. It did that in a letter addressed to the states parties to the Covenant, in which it acknowledged that while adjustment measures might sometimes be inevitable, they should comply with four requirements. The policy: (i) should be of a temporary nature ‘covering only the period of crisis’; (ii) should be justifiable as being ‘necessary and proportionate’; (iii) should not be discriminatory and should include policies designed ‘to mitigate inequalities that can grow in times of crisis and to ensure that the rights of the disadvantaged and marginalised individuals and groups are not disproportionately affected’; and (iv) should protect the ‘minimum core content of rights, or a social protection floor … at all times.’56 In 2016, the Committee adopted a more elaborate ‘Statement’, a document that seems to sit in between the ‘letter’ technique it used in 2012 and a General Comment. Its focus was on public debt and austerity, and their relationship to the rights in the Covenant. It began by observing that it had encountered many situations in which states parties had been unable to comply with their Covenant-based obligations as a result of ‘the adoption of fiscal consolidation programmes, including structural adjustment programmes and austerity programmes, as a condition for obtaining loans.’ Rather than reiterating the requirements identified in the 2012 letter, the Committee sought to apply them in practice by considering the different obligations that were incumbent upon the key actors in austerity contexts, which it identified as borrowing states, international organisations as lenders, states members of international organisations, and lending states. It explained the obligations that it believed each of them bears in relation to protecting economic, social and cultural rights and concluded by emphasising the importance of conducting human rights impact assessments in order to ensure that the conditionalities attached to loans do not disproportionately affect these rights and do not lead to discriminatory outcomes.57 One of the most noteworthy aspects of the 2016 statement is its focus on austerity programmes required to be implemented as a condition for obtaining loans.58 It thus does not cover, at least directly, the situation in the UK where the austerity programme was voluntarily adopted by the government. A detailed analysis of the Committee’s approach in the eight years before 2007 as well as the eight years after argues that it contented itself with responses that were largely procedural rather than coming to grips with the basic substance of the neoliberal policies that lay

55 ‘The nature of States parties’ obligations’, General Comment No 3 (1990), UN Doc E/1991/23, para 12. 56 Letter from the Chairperson of the Committee to States Parties, 16 May 2012, p 2. 57 ‘Public debt, austerity measures and the International Covenant on Economic, Social and Cultural Rights’, Statement by the Committee on Economic, Social and Cultural Rights, UN Doc E/C12/2016/1 (2016), para 11. 58 ibid, para 1.

274  Philip Alston at the heart of much of the austerity agenda.59 Warwick refers to a ‘hierarchy of comfort’ to describe the Committee’s preference for starting with a focus on promoting nondiscrimination, then moving to examine whether the few ‘immediate obligations’ in the Covenant had been respected, and finally focusing on the issue of ‘progressive realisation’. He argues that all of these approaches are more or less compatible with neoliberal values, and thus did not make strong inroads against problematic policies. But the Committee was less comfortable, and thus less forceful in insisting on ‘non-retrogression’ in relation to key standards and protection of the ‘minimum core’ of rights despite any fiscal hardships.60 In 2018, the Committee continued to apply the principles adopted in its 2012 letter and its 2016 statement. Thus, for example, it urged Germany to ‘make every effort to exercise its great leverage to ensure that all international financial institutions of which it is a State member ensure that the conditionalities attached to a loan do not lead borrowing States to violate their obligations under the Covenant.’61 It expressed concern that Argentina’s austerity measures had reduced protection for the rights of disadvantaged individuals and groups, and that a zero-deficit target agreed with the IMF was problematic. It called for an impact assessment of the measures already taken, as well as the preservation of ‘budget lines related to social investment in the most disadvantaged groups’.62 But its most robust observations were in regard to the economic crisis in South Africa. It challenged the absence of any deadline for re-examining or lifting the government’s austerity measures, and expressed concern over the exacerbation of inequality and the extent of regression in relation to basic rights. It went considerably further than it had previously by noting that other avenues for raising funds had not been tapped, calling for increased funding for social security, health and education, and addressing recommendations to a specific government department and the Parliamentary Standing Committee on Public Accounts.63 Another initiative that can only be noted in passing here, but is of potentially major relevance in relation to the future evaluation of austerity measures, is the adoption of the Guiding Principles on Human Rights Impact Assessments of Economic Reforms, by the Human Rights Council in March 2019.64 Finally, in the UN context, reference should be made to the recent adoption by the UN Human Rights Committee of a general comment that very significantly updates its understanding of how the right to life should be interpreted. While early drafts of the document adopted a very traditional approach that locked in the distinction between the two sets of rights and treated the right to life as though it had very little to do with broader issues of survival and subsistence. But the final version, adopted in November 2018, adopted a

59 Ben TC Warwick, ‘A Hierarchy of Comfort? The CESCR’s Approach to the 2008 Economic Crisis’, in G MacNaughton and DF Frey (eds), Economic and Social Rights in a Neoliberal World (Cambridge, Cambridge University Press, 2018) 127. 60 Each of these concepts derives either from the text of the Covenant itself or from the interpretation adopted by the Committee in its General Comment No 3. 61 Concluding observations on the sixth periodic report of Germany, UN Doc E/C12/DEU/CO/6 (27 Nov 2018) para 1. 62 Concluding observations on the fourth periodic report of Argentina, UN Doc E/C12/ARG/CO/4 (1 Nov 2018) paras 5–6. 63 Concluding observations on the initial report of South Africa, UN doc E/C12/ZAF/CO/1 (29 Nov 2018), paras 18–20. 64 UN Doc A/HRC/40/57 (2019).

The Impact of Austerity on the Protection of Human Rights  275 very different perspective.65 The Committee observed that states must respect the right to life and refrain ‘from engaging in conduct resulting in arbitrary deprivation of life’. The latter phrase was defined as ‘an intentional or otherwise foreseeable and preventable lifeterminating harm or injury, caused by an act or omission’. But while these statements are readily compatible with a very restrictive approach, the Committee went on to observe that states were also obliged to ‘ensure the right to life and exercise due diligence to protect the lives of individuals against deprivations caused by persons or entities, whose conduct is not attributable to the State. The obligation of states parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life’. While most of the sources cited for these conclusions came from the Committee’s own work, it also made specific reference to some European Court of Human Rights cases such as Osman v UK from 1998. The duty to protect life also implies that states parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include … the prevalence of life threatening diseases … widespread hunger and malnutrition and extreme poverty and homelessness. The measures called for addressing adequate conditions for protecting the right to life include, where necessary, measures designed to ensure access without delay by individuals to essential goods and services such as food, water, shelter, health-care, electricity and sanitation, and other measures designed to promote and facilitate adequate general conditions such as the bolstering of effective emergency health services, emergency response operations (including fire-fighters, ambulances and police forces) and social housing programmes.66

VI. Conclusion In this short contribution in honour of Allan Rosas, it is not possible to provide a comprehensive analysis of the many issues raised above. Among the principal conclusions that emerge are the following. First, human rights bodies have not yet succeeded in coming to grips effectively with the major challenge posed by austerity policies. Second, the challenge is evolving from a crisis context, such as in Greece, to a philosophy of government context, such as in the United Kingdom. Third, there can be no doubt that the United Kingdom case is clearly not in compliance with the requirements laid down by the ESCR Committee, since the measures are open-ended and not confined to the crisis, clearly and deliberately retrogressive, discriminatory in various ways, disproportionate and often unnecessary, and not protective of a minimum core of rights. Succinctly stated, several principal challenges emerge for the future. First, the European Court of Human Rights should revisit its affirmative rights jurisprudence and adopt a more flexible and nuanced approach to the issue of resources and the level of scrutiny that it applies to government austerity policies across the board. Second, the European ­Commissioner



65 General 66 ibid,

Comment No 36 (2018). para 26.

276  Philip Alston should consider how to give substance to the insightful abstract analyses adopted by her office. Third, the gap between the theory espoused by the UN ESCR Committee and the actual practice of states is growing ever larger, despite the former’s efforts. This will require new approaches to be developed, which should centre around giving meaningful, coherent, and consistent content to the minimum core concept. It will also be necessary to bite the bullet and recognise that certain forms of austerity are in fact a clear and sometimes deliberate assault on the basic foundational principles of human rights.

part iv EU External Relations and New Horizons

278

19 The European Union’s Accession to the Istanbul Convention SACHA PRECHAL*

I. Introduction The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, commonly known as the Istanbul Convention,1 was signed on behalf of the European Union by the Commission and the Presidency on 13 June 2017 – somewhat ironically, in the year of major #MeToo revelations. Although various human rights instruments prohibit discrimination based on sex, violence against women was not conceptualised as a matter of human rights law until the early 1990s. An important turning point was General Recommendation No 19 of the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW).2 In this recommendation, the CEDAW Committee stated, inter alia, that ‘Gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men’ and is, as such, contrary to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It called upon the State Parties to act with due diligence to prevent violations of such rights, to investigate and to punish acts of violence, and to provide compensation. In Europe, besides the Council of Europe Recommendation of the Committee of Ministers on the protection of women against violence,3 it is in particular the European Court for Human Rights (ECtHR) which plays an important role in this field by including genderbased violence in its interpretation of Article 3 of the European Convention on Human Rights (ECHR) (prohibition against torture and inhuman or degrading treatment) and Article 8 (protection of private and family life).4 According to the ECtHR, the contracting states have positive obligations to combat domestic violence and rape; in case of failure to do so, the state incurs liability. * All views expressed are strictly personal. 1 Adopted 11 May 2011, entered into force 1 August 2014, Council of Europe Treaty Series 210 (later also the Convention). 2 CEDAW, ‘General Recommendation 19, Violence against women’ (UN Doc A/47/38, 1993). 3 Council of Europe, ‘Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence’ (30 April 2002). 4 See, inter alia, Hajduová v Slovakia App no 2660/03 (ECtHR, 30 November 2010); Valiulienė v Lithuania App no 33234/17 (ECtHR 26 March 2013); and ŽB v Croatia App no 47666/13 (ECtHR, 11 July 2017).

280  Sacha Prechal For Europe, the Istanbul Convention is unique, as it is the first gender-specific and legally binding instrument on violence against women.5 It is the second human rights convention to which the European Union will accede, the first being the UN Convention on the Rights of Persons with Disabilities (UN Disabilities Convention). The Istanbul Convention was signed by both the Member States and the Union, and the latter will become a party to the Convention alongside the Member States following the completion of the ratification process. This ‘mixity’ poses similar questions and problems to those that arise in the case of the UN Disabilities Convention in terms of the nature of competencies involved and the participation of the Union in the Convention’s bodies. These issues will be addressed in section III, after a brief overview of the content of the Istanbul Convention in section II. In section IV, there will follow some reflections on the potential impact of the Union becoming a party to the Convention. As the accession to the Istanbul Convention entails an interesting mixture of fundamental rights protection and EU external relations, it seems to be a topic par excellence to pay tribute to Allan Rosas, who has, both in his academic writing and other professional ­capacities, made important contributions to the development of both areas of law.

II.  The Istanbul Convention in a Nutshell Drawing upon the work of the CEDAW, the Istanbul Convention establishes an inextricable link between the problem of gender-based violence and gender equality. First, the preamble states in this respect that ‘the realisation of de jure and de facto equality between women and men is a key element in the prevention of violence against women’ and it stresses the fact that violence against women is ‘a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men’. Second, one of the five purposes of the Convention is to ‘contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women’. A number of more specific provisions elaborate further various aspects of gender discrimination.6 While the Convention also addresses the causes of gender-based violence, its main emphasis lies on the prevention of, protection against and punishment of violence against women as well as domestic violence. This latter form of violence does not necessarily affect women only; however, the fact is that women are often victims of violence within the domestic sphere. Interestingly, while the Convention ‘shall apply to all forms of violence against women’, in relation to domestic violence the parties are ‘encouraged’ to apply it to all victims of d ­ omestic violence.7

5 In the Americas, there exists the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, known as the Convention of Belém do Pará, adopted in 1994. 6 For instance, Art 4(2) of the Convention, laying down an obligation to take legislative and other measures to prevent all forms of discrimination against women; Art 6 of the Convention, on gender-sensitive policies, including the obligation to promote and implement policies of equality between women and men; Art 12(1) of the Convention, obligation to promote changes in the social and cultural patterns of behaviour based, inter alia, on stereotyped roles for women and men. 7 Art 2 of the Convention.

The European Union’s Accession to the Istanbul Convention  281 The Convention consists of 12 chapters which, together, create an ambitious, ­comprehensive and, on certain points, detailed legal framework. The first chapter, apart from defining the purposes of the Convention, contains a number of definitions8 and general obligations for the parties. One of these is the obligation not only to ensure that state actors refrain from engaging in any act of violence against women, but also to exercise due diligence to prevent, investigate, punish and provide reparation for such acts committed by private actors.9 Chapter II is also of a general character. It requires the parties to put in place integrated policies, as a complement to the ‘prevention-protection-prosecution approach’, placing victims at the centre, to make available sufficient financial and human resources for the implementation of the policies and to collect in a systematic fashion adequate data for effective policy-making and monitoring. It also emphasises the need to recognise and support non-governmental actors and to set up one or more bodies responsible for the coordination, implementation and evaluation of policies and measures taken. Chapter III deals with prevention. It lays down a general obligation to promote changes in the social and cultural patterns that are based on the idea of inferiority of women and to take the necessary measures – legislative or other – to prevent all forms of violence covered by the scope of the Convention committed by any natural or legal person. Further, it contains a number of more specific obligations in the area of awareness-raising, education, and training of professionals who deal with victims or perpetrators. The state parties should encourage the media and IT sectors to elaborate policies and set self-regulatory standards to prevent violence against women. Special attention is required for degrading content of a sexual or violent nature that might be accessible to children. Protection and support of victims of violence are dealt with in detail in Chapter IV. The measures to be taken include the setting-up of support services, telephone helplines, shelters and appropriate centres for victims of sexual violence. Special measures are required to protect and support child witnesses. Chapter V concerns substantive law, both civil and criminal. As far as civil law is concerned, the Convention requires that adequate civil remedies are available against the perpetrator and against the State authorities that have failed in their duty to take the necessary preventive and protective measures. Similarly, victims must have the right to claim compensation from the perpetrator or subsidiary state compensation. Incidents of violence and the safety of the victims or children must be taken into account in legal proceedings

8 The most important definitions, to be found in Art 3 of the Convention, are the following: ‘“violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim; “gender-based violence against women” shall mean violence that is directed against a woman because she is a woman or that affects women disproportionately; “gender” shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.’ While, usually, next to ‘gender’, the term ‘sex’ refers to biological characteristics that define humans as female and male, I use in the present contribution the term ‘gender’ as covering both or I use the terms interchangeably. 9 Art 5 of the Convention. The other obligations concern the abovementioned obligation to ensure equal ­treatment and to implement gender-sensitive policies.

282  Sacha Prechal on custody and visitation rights. The Convention also addresses the legal consequences of forced marriages. In relation to certain forms of violence, the Convention requires the parties to recognise these as offences in their criminal law. These include psychological violence, stalking,10 physical violence, sexual violence, forced marriages, female genital mutilation, forced abortion and sterilisation, and sexual harassment. The aiding, abetting and attempted commission of the offences must also be criminalised. The offences cannot be justified by cultural, religious, traditional and ‘honour’ considerations. The parties must further ensure that the sanctions are effective, proportionate and dissuasive. Where appropriate, these sanctions shall include sentences involving the deprivation of liberty which can give rise to ­extradition. The Convention contains a long list of aggravating circumstances. In terms of jurisdiction, the parties must establish jurisdiction for acts committed in their territory, by one of their nationals or a person with a habitual residence in their territory. They must also provide for the possibility to take into account final sentences passed by another Party when determining a sentence in their own jurisdiction. Finally, the ­Convention does not permit mandatory alternative dispute resolution processes. Chapter VI, dealing with investigation, prosecution, procedural law and protective measures, emphasises the need for prompt action by enforcement agencies and judicial proceedings without undue delay, while taking into account the rights of the victims. It contains a list of protective measures, such as protection against intimidation and repeat victimisation and the avoidance of contact between victim and perpetrator to the greatest extent possible. The states must provide for the possibility for the competent authorities to adopt emergency barring, restraining or protection orders without placing undue financial and administrative burdens on the victim. Prosecution of a number of serious offences must not be made dependent on the filing of a report or complaint by the victim, and the states must ensure that it is not time-barred too quickly. Victims must be given legal assistance and free legal aid, and have the possibility to seek the assistance of (non-) governmental organisations during the investigation and judicial proceedings. A special chapter, Chapter VII, is dedicated to female migrants and asylum-seekers.11 It provides for the possibility for migrant women who are victims of (domestic) violence to acquire an autonomous residence status. The parties must also ensure that gender-based violence may be recognised as a form of persecution in the sense of the Geneva ­Convention12 or as a form of serious harm giving rise to subsidiary protection. Chapter VIII concerns cooperation between the parties through relevant regional and international cooperation instruments. It includes exchange of information and cooperation in civil and criminal matters, such as mutual legal assistance in criminal matters, extradition or enforcement of civil or criminal judgments. A mechanism to monitor the implementation of the Convention is set up in Chapter IX. Such monitoring is in the hands of the Group of experts on action against violence against women and domestic violence (GREVIO), elected by the Committee of the Parties and

10 However, under Art 78(3) of the Convention, reservations are possible in relation to the criminal nature of the sanctions for psychological violence and stalking; non-criminal sanctions are allowed. 11 See in this regard V Stoyanova, ‘A Stark Choice: Domestic Violence or Deportation?’, (2018) European Journal of Migration and Law 53. 12 The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, 189 United Nations Treaty Series 150, No 2545 (1954).

The European Union’s Accession to the Istanbul Convention  283 composed of at least 10 and at most 15 members. The monitoring is based on ­evaluation reports, prepared by GREVIO, which may carry out specific inquiries and country visits. GREVIO may adopt general recommendations as well as specific recommendations addressed to the party concerned. The remaining three chapters deal with the usual matters: relationship with other international instruments (Chapter X), amendments (Chapter XI) and final clauses ­ ­(Chapter XII). Article 73 provides that the Convention is without prejudice to more favourable provisions of internal or international law. According to Article 78 in the last chapter, reservations are possible on a limited number of provisions and for a (renewable) period of five years.

III.  The European Union Perspective Article 75(1) of the Istanbul Convention provides explicitly for the possible signature and accession by the EU. The Commission proposed Articles 82(2) and 84 TFEU, in conjunction with Article 218(5) TFEU, as the legal bases for such signature and accession.13 While the explanatory memorandum accompanying these proposals mentions a plethora of possible legal bases, the Commission chose those two articles because it considered that ‘the predominant purpose lies in the prevention of violent crimes against women, including domestic violence, and the protection of victims of such crimes.’ Yet, in my view, other matters are, arguably, somewhat too easily put aside as ‘ancillary’. Given the broad approach of the Convention and in particular its emphasis on non-discrimination, it may be asked whether at least Article 19(1) TFEU should not have featured among the legal bases.14 The Council did not follow this proposal. It adopted two separate decisions on the Union’s signature of the Convention: the first decision concerning asylum and nonrefoulement, using Article 78(2) TFEU, in conjunction with Article 218(5) TFEU, as the legal bases,15 and the second decision on matters related to judicial cooperation in criminal matters, with Articles 82(2) and 83(1) TFEU, in conjunction with Article 218(5) TFEU, as the legal bases.16 At the time of writing,17 there seems to be little progress in the negotiations within the Council on the conclusion of the Convention. This also involves negotiations about a Code 13 Commission, ‘Proposal for a Council Decision on the signing, on behalf of the European Union, of the C ­ ouncil of Europe Convention on preventing and combating violence against women and domestic violence’ COM (2016) 111, and Commission, ‘Proposal for a Council Decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence’ COM(2016) 109. 14 That article enables the Union to take appropriate action to combat discriminations based, inter alia, on sex. See further below. 15 Council Decision 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement, [2017] OJ L131/13. Denmark, Ireland and the UK are not bound by this Decision. 16 Council Decision (EU) 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters, [2017] OJ L131/11. Only Denmark is not bound by this decision. 17 August 2018. At present, the Convention has been signed and ratified by the following 20 Member States: Austria, Belgium, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovenia, Spain and Sweden; it was signed, but not ratified, by

284  Sacha Prechal of Conduct, containing arrangements between the Commission and the Member States for the implementation and monitoring mechanism provided by the Convention, which should accompany the Council’s conclusion decision.18 Apparently, some Member States are reluctant to support the EU’s accession to the Convention. Instead, in those Member States, serious misconceptions have spread about the Convention and its content as ‘ideologically biased’ or against ‘traditional family values’ or as introducing an obligation to allow same-sex marriage or a new refugee status for transgender or intersex persons.19 Meanwhile, Austria had announced that the adoption of a Council decision on the conclusion of the Convention and the Code of Conduct would be a priority under its presidency in the second half of 2018.20 While some parts of the Convention remain under the sole competence of the Member States, EU competence involved in the Convention takes various forms: exclusive, shared and supplementary/supporting.21 Obviously, as is often the case with mixed agreements, the division and in particular the nature of competences are at the heart of the debates in the Council. This is illustrated by the Commission’s proposal on the Union’s signature of the Convention and the Council’s two signing decisions, not so much from the choice of legal bases, but rather, from the preambles of the proposed texts. The Commission observes that the Member States remain competent for the criminalisation of a number of violent forms of behaviour against women in their national substantive criminal law, but that the Union has competence covering most of the provisions of the Convention and has adopted an extensive set of rules in these areas. According to the Commission, the Union has exclusive competence to the extent that the Convention may affect those common EU rules or alter their scope.22 The Council has a different perspective: both the Union and its Member States have competence in the fields covered by the Convention. The Convention should be signed on behalf of the Union as regards matters falling within the competence of the Union insofar as the Convention may affect common rules or alter their scope. This applies, in particular, to certain provisions of the Convention relating to judicial cooperation in criminal matters and to the provisions of the Convention relating to asylum and non-refoulement. The Member States retain their competence insofar as the Convention does not affect common rules or alter

the following eight Member States: Bulgaria, the Czech Republic, Hungary, Ireland, Latvia, Lithuania, the Slovak Republic and United Kingdom. 18 cf Art 4(2) of the Proposal for a Council Decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence, COM(2016) 109. 19 cf the – somewhat perplexing – debates in the European Parliament on Wednesday, 13 June 2018 (First anniversary after the signature of the Istanbul Convention: state of play), www.europarl.europa.eu/sides/getDoc. do?pubRef=-//EP//TEXT+CRE+20180613+ITEM-004+DOC+XML+V0//EN&language=EN or euobserver.com/ opinion/141235. Similarly, in a judgment of 27 July 2018, which might have benefited from more considered reflection, the Bulgarian Constitutional Court found that the Istanbul Convention contravenes the Bulgarian Constitution. See for instance ohrh.law.ox.ac.uk/promoting-gender-ideology-constitutional-court-of-bulgariadeclares-istanbul-convention-unconstitutional/. 20 See www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-rights/file-eu-accessionto-the-istanbul-conventionandwww.europarl.europa.eu/news/en/press-room/20180710IPR07609/austrian-presidencypriorities-discussed-in-committees. 21 The last forms of competence concern, for instance, education and culture. 22 Preamble of the Commission’s proposals (n 13), points 5 and 6.

The European Union’s Accession to the Istanbul Convention  285 their scope.23 The preambles add that the Union also has exclusive competence with respect to its own institutions and public administration.24 In its decisions, the Council authorises the signing of the Convention ‘with regard to judicial cooperation in criminal matters’ and respectively ‘with regard to asylum and non-refoulement’. The Council’s approach is indeed in sharp contrast with the more generous approach suggested by the Commission. Apparently, according to the Council, the accession should be limited to the extent of the exclusive competences of the Union and these are defined, in both signing decisions, in a very narrow way. To this, it may be added that even in a situation when an international agreement falls within shared competence of the Union, the Member States, acting as members of the Council, may agree that the Union shall act, instead of the Member States themselves. Moreover, the Council’s minimalistic position is a clear prelude to the ongoing debates between the Council, the Member States and the Commission about the competences and responsibilities of the various actors in the implementation of the Convention and the participation in the Convention bodies. This position further suggests that the Council, having rejected the broad approach of the Commission, prefers a screening of the Convention, provision by provision, in order to establish the nature of the respective competences. One of the central questions, also from the Council’s perspective, is whether the Convention and the international commitments following therefrom may affect common EU rules or alter their scope, the third criterion for the Union’s exclusive external competence laid down in Article 3(2) TFEU. It is certainly not my intention to embark, within the confines of this short contribution, on a chapter-by-chapter – or even an article-by-article – ­stocktaking of the Convention in this regard.25 Rather, I prefer to provide some general reflections concerning the question of the Union’s exclusive competence in the light of the Court of Justice’s recent case law.26 As is well-known, this criterion reflects the terms used in the AETR judgment.27 This so-called AETR principle has been further clarified and developed in the Court’s case law and may be summarised as follows:28 in the area covered by the international agreement, rules of secondary EU law must in principle29 already exist. Where the international commitments fall within an area in which the EU rules are applicable, there exists a risk of these commitments undermining the common EU rules or altering their scope. For a finding that there is such a risk, it is not necessary that the area covered by the international agreement and that of the EU rules coincide fully.30 The EU rules may also be affected or

23 Preambles of both Council decisions (nn 15–16), points 5 and 6. 24 ibid, point 7. 25 For a helpful and more detailed overview, see K Nousiainen and C Chinkin, Legal implications of EU accession to the Istanbul Convention, report of the European network of legal experts in gender equality and nondiscrimination, European Commission (Brussels, OP, 2015). See also Commission’s proposals (n 13). 26 For an extensive discussion, see A Rosas, ‘EU External Relations: Exclusive Competence Revisited’ (2015) Fordham International Law Journal 1073. 27 Case 22/70 Commission v Council EU:C:1971:32, para 22. 28 Yet, for the application of the ‘test’, various caveats should be made: the assessment takes into account the particularities of each case, and the Court’s case law is rather complex. 29 Although the future development of the EU rules concerned may be taken into account, as discussed further below. 30 Opinion 1/03 (Lugano Convention) EU:C:2006:81, para 126, and Case C-114/12, Commission v Council (Protection of neighbouring rights Convention) EU:C:2014:2151, para 69.

286  Sacha Prechal have their scope altered when the international commitments fall within an area which is already covered to a large extent by such rules.31 In order to establish whether the Union’s competence is exclusive, a comprehensive and specific analysis of the relationship between the envisaged international agreement and the EU law in force has to take place. This analysis must take into account the areas covered by the EU rules and by the provisions of the agreement envisaged, their foreseeable future development in so far as it is foreseeable at the time of the analysis,32 and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish.33 Here, the Istanbul Convention has a logic and structure of its own. When examining how much of the area of the Convention is covered by EU legislation, the picture is one of a patchwork. On the one hand, there are indeed parts which are not covered at all since they are – for the time being – within the competence of the Member States only. On the other hand, different parts of the Convention are to a considerable extent covered by EU rules. This is particularly true for the so-called ‘Victims’ directive’,34 which covers various obligations under Chapter IV (Protection and Support) and Chapter VI (Investigation, prosecution, procedural law and protective measures) of the Convention. Similarly, in the area covered by the last Chapter, Chapter VIII (International co-operation) and certain aspects of Chapter V (Substantive law) of the Convention, there now exists extensive EU legislation on cross-border cooperation in civil and criminal matters.35 There is a considerable overlap and close connection between the provisions of Chapter VII (Migration and asylum) of the Convention and EU legislation in the field of asylum and migration as well as the residence status of third-country nationals. The question is indeed to what extent the foregoing points lead to the conclusion that the relevant EU legislation covers ‘to a large extent’ important parts of the Istanbul Convention.

31 Opinion 2/91 (Convention No 170 of the ILO) EU:C:1993:106, para 25; Opinion 1/03 (Lugano Convention) (n 30), para 126, and Case C-114/12 Commission v Council (Protection of neighbouring rights Convention) (n 30) para 70; Opinion 3/15 (Marrakesh Treaty) EU:C:2017:114, paras 105–07. 32 Opinion 1/03 (Lugano Convention) (n 30), para 126, and Case C-66/13 Green Network EU:C:2014:2399, para 33. 33 Case C-114/12 Commission v Council (n 30), para 74; Opinion 1/13 (Accession of a non-Union country to the Hague Convention) EU:C:2014:2303, para 74, and Case C-66/13 Green Network (n 32), para 33. 34 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L315/57. 35 For instance, Regulation 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L181/4; Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338/2; Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States [2009] OJ L93/23; Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings [2008] OJ L220/32; 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – ­Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1, and Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1.

The European Union’s Accession to the Istanbul Convention  287 This is not the end of the story, however. There also exists a body of EU gender discrimination law that clearly comes into play and, in my view, has been somewhat overlooked in the debates at the EU level on the signature and conclusion of the Istanbul Convention. First, as was stated in section II above, the Istanbul Convention regards violence against women as a part of a much larger picture, namely as a problem of (in)equality of women and men, and for this reason it not only defines violence against women as a problem of gender discrimination, but also lays down, in Chapter I, as one of its purposes, to ‘contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women’ and obliges the parties to combat all forms of discrimination against women. Although generally limited to matters concerning the labour market and the supply of goods and services, at least three different directives are highly relevant: the Directive on equal treatment in matters of employment and occupation,36 the Directive on equal treatment for the self-employed37 and the Directive on equal treatment in the access to and supply of goods and services.38 As such, they coincide with one of the purposes of the Istanbul Convention and partly fulfil the obligation to combat all forms of discrimination. Second, these three EU gender discrimination directives contain specific provisions concerning harassment based on sex39 and sexual harassment.40 These are prohibited as forms of gender discrimination.41 This is perhaps not self-evident. Harassment based on sex or sexual harassment cannot easily be caught by the general definition of discrimination provided in the directives.42 In Europe, traditionally, the problem of sexual harassment

36 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 37 Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC [2010] OJ L180/1. 38 Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L372/37. The preamble of this directive clearly states that ‘Discrimination based on sex, including harassment and sexual harassment, also takes place in areas outside of the labour market. Such discrimination can be equally damaging, acting as a barrier to the full and successful integration of men and women into economic and social life.’ 39 Defined as ‘where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of that person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment’. 40 Defined as ‘where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.’ 41 It should be noted that Directive 2006/54 is not limited to harassment in the workplace, and also applies in the context of access to employment, vocational training and promotion. 42 According to these definitions, ‘direct discrimination’ occurs where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation; ‘indirect discrimination’ occurs where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. In the UK, some forms of sexual harassment were captured by a comparable discrimination definition: harassment could amount to discrimination if it involved less favourable treatment on the grounds of sex. The limit of this approach is, however, that the employer could claim an equally disliked person of the other sex would be subjected to the same treatment. If this was made plausible, there was no discrimination under the Sex Discrimination Act.

288  Sacha Prechal has been conceived as a matter of dignity of women or even dignity of workers.43 In the United States, by contrast, harassment has been regarded as a form of discrimination under Title VII of the Civil Rights Act. It started with the discriminatory harassment of racial minorities, but the approach extended to sexual harassment. This ‘discrimination approach’ is based on an understanding of gender discrimination as a manifestation of structural inequalities between men and women, characterised by unequal power relations and the subordination of women to men.44 The Istanbul Convention, which qualifies violence against women as a form of discrimination, is basically based on the same understanding of gender discrimination. While the ‘discrimination approach’ has gained influence in Europe, it is often still combined with the ‘dignity harm approach’, as a result of which there is a so-called ‘double approach’.45 The EU’s acceptance of harassment based on sex and sexual harassment as forms of discrimination has implications for the understanding of the notion of sex discrimination as it features in, for instance, Article 19 TFEU. The acceptance means that this notion also covers structural forms of discrimination, thereby going beyond the primarily individual approach and beyond the differential treatment on grounds of sex, which are inherent to the test of ‘treating a person less favourably on grounds of sex than another person is or would be treated in a comparable situation’.46 That being said, the inclusion of harassment based on sex and sexual harassment as forms of discrimination in the Directives has a number of consequences: the Member States must, inter alia, provide for effective, proportionate and dissuasive penalties,47 real and effective compensation or reparation for the victims, protection against victimisation, a shift in the burden of proof,48 access to courts, and they must ensure that complainants may

43 Exceptions are the UK and Ireland. These Member States have followed the American tradition and qualified harassment as unacceptable sex discrimination. 44 See in particular C MacKinnon, Sexual Harassment of Working Women (New Haven, Yale University Press, 1979). 45 For a detailed discussion, see A Numhauser-Henning and S Laulom, Harassment related to Sex and Sexual Harassment Law in 33 European Countries – Discrimination versus Dignity, report of the European network of legal experts in gender equality and non-discrimination, European Commission (Brussels, OP, 2012). Cf also A ­McColgan, ch 4, ‘Harassment’, in Dagmar Schiek et al (eds), Cases, Materials and Text on National, Supranational and International Non-discrimination Law (Oxford, Hart, 2007), and R Holtmaat, ‘Sexual Harassment as Sex Discrimination: A Logical Step in the Evolution of EU Sex Discrimination Law or a Step Too Far?’ in M Bulterman et al (eds), Views of European law from the Mountain: Liber Amicorum Piet Jan Slot (Kluwer Law International, 2009) 27–40. 46 See above, n 42. It should be noted that EU law does not entirely turn a blind eye to structural forms of discrimination; in a number of respects, it recognises the structural nature of gender discrimination, for instance by allowing positive measures (Art 157(4) TFEU). Cf also the considerations of the Court in Case C-43/75 Defrenne v Sabena EU:C:1976:56, para 19, where it held that the complete implementation of the principle of equal pay, by means of the elimination of all discrimination, between male and female workers ‘as regards … entire branches of industry and even of the economic system as a whole, may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community and national level’. However, the main legal tools remain the definitions established in Directive 2006/54. 47 Here, it should be pointed out that criminal penalties may be essential to combat effectively certain cases of serious (sexual) harassment. Cf by analogy Case C-440/05 Commission v Council (Ship-source pollution) EU:C:2007:625. 48 On the shift of the burden of proof in relation to alleged harassment under Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, see Case C-303/06 Coleman EU:C:2008:415, paras 61–62.

The European Union’s Accession to the Istanbul Convention  289 be supported by organisations. The Member States must also promote effective measures to prevent harassment and sexual harassment, and establish equality bodies with a number of specific competences. It would appear that this ‘comprehensive legal framework’ set out in the Directives corresponds with many obligations laid down in the Istanbul Convention. In short, the overall picture is that there is extensive EU legislation in an important number of areas covered by the Istanbul Convention, and therefore the ‘covered to a large extent’ requirement seems to be satisfied; at least for these areas, the Union should be regarded as having exclusive external competence.49 Does it matter that both the Istanbul Convention and various of the EU instruments could be considered to set forth minimum requirements only, in the sense that the parties or Member States may introduce or maintain more favourable provisions?50 In Opinion 2/91, the Court of Justice ruled that the common rules may not be sufficiently ‘affected’ by an international agreement which itself allows contracting parties to adopt more stringent measures than the minimum requirements of the agreement itself. In a subsequent case, the Court explained that the situation envisaged in that Opinion was one where both the EU rules and the international agreement laid down minimum requirements.51 In the limited context of Opinion 2/91, this makes sense. However, it is questionable whether, in the much broader and complex context of the sometimes inextricably linked rules of the Istanbul Convention and the ‘counterpart’ EU legal framework established by various legal instruments, the ‘exception for minimum requirements’ applies. Rather, it would seem that there may be a risk that some of the EU rules will ‘be affected or their scope altered’ and that the Convention’s provisions may interfere with the functioning of the system put in place by these rules.

IV.  Final Remarks The process of the Union’s accession to the Istanbul Convention raises a number of interesting legal questions. From a political point of view, it bears witness once again to the firm intention of the Member States’ political and administrative elites to preserve space for national decision-making and posturing,52 if not efforts to block the process altogether. What is the added value of the EU becoming a party to the Convention? From a legal point of view, a number of issues can be mentioned. First, the provisions of the Convention will become an integral part of the Union legal order and be binding on both the EU institutions and organs and the Member States. Second, the Court of Justice will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence. This will contribute to a uniform interpretation of those ­provisions

49 Whether the ‘foreseeable future development’ of the EU rules should be taken into account is rather questionable. See the remarks on ‘de lege ferenda’ below, in section IV. 50 See Art 73 of the Istanbul Convention; in EU law see, for instance, the preamble and the very title of Directive 2012/29 (‘Victims directive’) and Art 27 of Directive 2006/54 (equal treatment of men and women). 51 C-114/12 Commission v Council (n 30), para 91. 52 To paraphrase Allan Rosas. See his ‘Exclusive, Shared, and National Competence in the Context of EU External Relations: Do Such Distinctions Matter?’ in I Govaere et al (eds), The European Union in the world: essays in honour of Marc Maresceau (Martinus Nijhoff Publishers, 2014) 17–43, at 17.

290  Sacha Prechal within the EU. Third, the question of direct effect of the Convention’s provisions will arise. In relation to the UN Disabilities Convention, the Court ruled that that Convention did not have direct effect. The test of being ‘unconditional and sufficiently precise’ as regards the content of the provisions of that Convention was not met because they are subject, in their implementation or their effects, to the adoption of subsequent acts of the contracting parties.53 The question is indeed whether the approach to the provisions of the Istanbul Convention will be the same.54 Fourth, in any case, the Convention will have an ‘indirect effect’ in the sense that by virtue of the primacy of international agreements concluded by the European Union over provisions of secondary legislation, those provisions must, as far as possible, be interpreted in a manner that is consistent with those agreements;55 in turn and ‘par ricochet’, this will influence the interpretation of national law provisions. Fifth, all this may contribute to the enforceability of the Convention. De lege ferenda, the Convention could be a reason for the Council to activate the ‘passerelle clause’ of Article 83(1) TFEU and identify (certain forms of) gender-based violence as being covered by that Article.56 While no Union legislation in the area of gender violence appears to be envisaged for the moment, the fact remains that the European Parliament has called for a proposal for a directive against all forms of violence against women and gender-based violence.57 Further, the Convention is important from a policy perspective. In fact, various provisions of the Convention do not require legislative action, but rather concrete policy measures. The Union has developed several programmes and policies to combat violence against women,58 and adopted a number of soft-law instruments.59 The implementation

53 Case C-363/12 Z v A Government Department EU:C:2014:159, paras 85–90, and Case C-356/12 Glatzel v Freistaat Bayern EU:C:2014:350, para 69. 54 The relevant paragraphs of the Z case (n 53) did not escape criticism. See, for instance, Geert De Baere, ‘Shall I Be Mother? The Prohibition on Sex Discrimination, the UN Disability Convention, and the Right to Surrogacy Leave under EU Law’ (2015) Cambridge Law Journal at 46. 55 In relation to the UN Disabilities Convention, see, for instance, Case C-335/11 HK Danmark v Dansk ­Arbejdsgiverforening EU:C:2013:222, para 29, Case C-363/12, Z (n 53), para 72 and Case C-356/12 Glatzel v Freistaat Bayern (n 53), para 70. As is well-known, through this approach, the UN Disabilities Convention has considerably influenced the understanding of the concept of disability in EU law. 56 It should be noted that the Union has competence to adopt criminal law measures on offences not listed in Art 83(1), if this is ‘essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures'. See Art 83(2) TFEU. 57 European Parliament, ‘Resolution on combating sexual harassment and abuse in the EU’ (26 October 2017) 2017/2897(RSP). 58 For instance, see the past three ‘Daphne programmes’ of Community action to prevent and combat violence against children, young people and women and to protect victims and groups at risk (Daphne I, Decision 293/2000, [2000] OJ L34/1; Daphne II, Decision 803/2004, [2004] OJ L143/1; Daphne III, Decision 779/2007, [2007] OJ L173/19, adopted by the European Parliament and the Council); more recent are, for instance, the social media campaign ‘Non. No. Nein. Say No – Stop Violence Against Women’ (ec.europa. eu/justice/saynostopvaw), the call for proposals to prevent and combat gender-based violence and violence against children (ec.europa.eu/research/participants/portal/desktop/en/opportunities/rec/topics/rec-rdap-gbvag-2018.html) and the support of various concrete initiatives and projects to fight gender-related violence and improved data collection on different forms of gender-based violence. Cf also www.equineteurope.org/2017European-Year-of-focused-action-to-fight-violence-against-women. 59 See, for instance, ‘EU guidelines on violence against women and girls and combating all forms of discrimination against them’ (General Affairs Council of 8 December 2008), available at ec.europa.eu/anti-trafficking/sites/ antitrafficking/files/eu_guidelines_on_violence_against_women_and_girls_1.pdf, and Commission, ‘Communication from the Commission to the European Parliament and the Council, Towards the elimination of female

The European Union’s Accession to the Istanbul Convention  291 of the Istanbul Convention will institute a new framework, first, to streamline the measures at the EU level and to identify gaps in the policies; second, it may help to make EU and national actions more coherent. Further, it may be an additional stimulus for action in new problem areas, such as cyber-bullying and cyber-harassment of women,60 and sexist ­hate-speech and gender-stereotyping in the media and online.61 Gender-based violence is an unfortunate reality.62 The EU’s conclusion of the Istanbul Convention is not only an important step in eradicating this form of violence, but also is perfectly in line with the objectives of the Union, to promote gender equality, combat discrimination and to prevent and combat crime, and the values on which the Union is founded, namely, respect for human dignity and equality between women and men.63

genital mutilation’ COM (2013) 833 final. There also exist various recommendations and resolutions which are focused on harassment and sexual harassment at the workplace. 60 cf European Institute for Gender Equality, Report on Cyber violence against Women and Girls (2017), available at eige.europa.eu/rdc/eige-publications/cyber-violence-against-women-and-girls. 61 In small part, these issues are addressed by Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) [2010] OJ L95/1, Art 6. See also Commission, ‘Proposal for a Directive of the European Parliament and of the Council amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services in view of changing market realities’ COM (2016) 287 final, in particular Art 28a thereof. 62 Report of the European Union Fundamental Rights Agency, The Violence against women: an EU-wide survey (2014), available at: fra.europa.eu/en/publication/2014/violence-against-women-eu-wide-survey-main-results-report. 63 Arts 2 and 3 TEU.

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20 The Exercise of Non-Exclusive Competence of the EU and the Conclusion of International Agreements JONI HELISKOSKI*

I. Introduction In any assessment of the delimitation of competence – that is, legal authority to enact legislation, conclude international agreements – as between the European Union and its Member States, attention should be paid not only to the question concerning the scope or existence of the EU’s competence as determined by the EU Treaties. It is equally important to look at the nature of that competence in the light of the various categories of EU competence defined notably in Article 2 of the Treaty on the Functioning of the European Union (TFEU) as well as the areas falling within each of those categories in the light of Articles 3 to 6 TFEU. In that regard, it becomes clear that, apart from the areas or situations of exclusive EU competence, the existence of EU competence does not rule out the competence of the Member States that are entitled, therefore, to act in a given subject matter in spite of the EU enjoying competence in the subject matter in question. In areas of shared competence, the Member States may exercise their competence to the extent that the EU has not exercised its competence (Art 2(2) TFEU). In those areas where the EU has competence to carry out actions to support, coordinate or supplement the actions of the Member States, the exercise of EU competence does not supersede the competence of the Member States (Art 2(5), first subpara, TFEU). The same is probably also true for the EU’s competence to coordinate the economic and employment policies of the Member States (Art 2(3) TFEU), and to define and implement a common foreign and security policy (Art 2(4) TFEU). The very existence of these categories of ‘non-exclusive’ or ‘potential’ competence as well as their coverage extending to the great majority of the policy areas covered by the Treaties (Arts 4 to 6 TFEU) show that, in the attribution of competence upon the EU, non-exclusive c­ ompetence is the basic rule and exclusive EU competence very much an exception. The above state of affairs has specific implications in the field of the EU’s external relations in general and the conclusion of international agreements in particular. Namely it may happen that while EU competence exists for the conclusion of an international agreement * While the author is an official of the Ministry for Foreign Affairs, Helsinki, the views expressed are personal.

294  Joni Heliskoski in its entirety, that competence may not be exclusive for the whole of the agreement. Typically, an agreement may fall in part within the EU’s exclusive competence and in part with the EU’s competence, the nature of which is non-exclusive. In such a scenario, there are two possibilities: first, to conclude an agreement between the EU and the other contracting party (or parties) or, secondly, to conclude a mixed agreement the parties to which include not only the EU but also some or all of its Member States in their individual capacity. The fact that, in the second scenario, the participation by the Member States in the agreement is not legally necessary has inspired Allan Rosas, in his many studies on mixed agreements, to describe the phenomenon as ‘facultative’ as opposed to ‘obligatory’ mixity.1 In the case of obligatory mixity, which occurs more rarely in practice, the participation of both the EU and its Member States in the conclusion of an international agreement is legally necessary due to the lack of either EU or Member State competence for at least some aspects of the agreement. While the notion of facultative mixity as such is by now well established in the scholarly world of mixed agreements, the question concerning the exercise of competence in matters falling within the EU’s non-exclusive competence still belongs to the ones that continue to give rise to uncertainty both in the actual practice and in the academic discussion.2 That question involves two separate but equally crucial issues. First, the question concerning the exercise by the European Union of its external competence in matters in which that competence is not exclusive. Secondly, the question of the right of the EU to refrain from exercising its competence in such matters for the purposes of concluding an international agreement, thereby leaving it open to the Member States to exercise their competence, especially in cases where the EU in any event has to exercise its exclusive competence. As the latter question in particular still belongs to the thorniest problems surrounding the practice of mixed agreements,3 it seems only appropriate to devote one chapter of the present volume to the above set of problems. Indeed, mixed agreements have attracted a long-standing interest from Allan Rosas and, for the last 20 years or so, hardly a collection of writings on the topic has come out, or an academic seminar on mixed agreements taken place, without a ­contribution from him.4 The structure of the present chapter will be as follows. First, the two basic parameters of the nature of the EU’s non-exclusive competence will be clarified: on the one hand, the possibility of the EU to exercise that competence and, on the other hand, the possibility of

1 See A Rosas, ‘Mixed Union – Mixed Agreements’, in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer, 1998) 125, 131–32 and A Rosas, ‘European Union and Mixed Agreements’, in A Dashwood and C Hillion (eds), The General Law of E. External Relations (London, Sweet & Maxwell, 2000), 200, 205–06. 2 This may be illustrated by the GELI Workshop on Facultative Mixity in the Post-Lisbon Legal Order, organised by the Ghent European Law Institute and the Univerity of Ghent on 28 September 2018. Allan Rosas was the keynote speaker. 3 For a recent study, see M Chamon, ‘Constitutional Limits to the Political Choice for Mixity’, in E Neframi and M Gatti (eds), Constitutional Issues of EU External Relations Law (Baden-Baden, Nomos, 2018), 137. 4 In addition to the contributions in n 1 above, see, eg, A Rosas, ‘The Future of Mixity’, in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited (Oxford, Hart Publishing, 2010), 367; A Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do such Distinctions Matter?’, in I Govaere et al (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden, Martinus Nijhoff, 2014), 17; and A Rosas, ‘Relations extérieures de l’Union’, in Verso i 60 anni dai Trattati di Roma. Stato e prospettive dell’Unione Europea (Torino, G Giappichelli Editore, 2016), 279.

The Exercise of Non-Exclusive Competence of the EU  295 the EU to refrain from doing so, thereby leaving it to the Member States to exercise their competence (section II). Secondly, the possibility of the EU to refrain from exercising its non-exclusive competence will be subject to a more critical scrutiny through an inquiry as to the circumstances that constrain either the right of the institutions to refrain from exercising the EU’s competence or that of the Member States to exercise their competence. This, again, involves two sets of distinct issues: first, the constraints governing the choice to exercise either EU or Member State competence (section III) and, secondly, the obligations incumbent on the institutions and the Member States when they decide to conclude a mixed agreement instead of a pure EU agreement (section IV). Finally, some concluding observations are presented, including on how more way could be paved for increased use of pure EU agreements instead of facultative mixed agreements (section V).

II.  The Exercise of Competence in Areas of Non-Exclusive EU Competence It will already have become apparent from the overview of the provisions of Article 2 TFEU that in areas other than the ones falling within the EU’s exclusive competence both the EU and its Member States are, in principle, entitled to act. In matters falling within shared competence, however, it follows from Article 2(2) TFEU that the Member States may only exercise their competence to the extent that the EU has not exercised its competence.5 ­Insofar as concerns the other categories of non-exclusive competence defined in paragraphs 3 to 5 of Article 2 TFEU, no such ‘pre-emption’ of Member State competence through action taken by the EU would seem to take place, except, perhaps, through ‘AETR effect’6 based on Article 3(2) TFEU.7 The relevant power-conferring provisions (‘legal bases’) then determine the scope of the EU’s competence in each area of the EU’s activity (Art 2(6) TFEU). Insofar as concerns the conclusion of international agreements by the EU, those powerconferring provisions would also have to be read in conjunction with Article 216(1) TFEU which further circumscribes the EU’s external competence in that regard.8 These provisions would then seem to lead to the following basic set-up concerning the competence of the EU and the Member States conclude international agreements in areas of non-exclusive EU

5 Protocol (No 25) on the Exercise of Shared Competence provides that ‘when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.’ 6 Case 22/70 Commission v Council EU:C:1971:32, esp paras 17 and 22. 7 Art 2(5) TFEU would seem to rule out an AETR effect based on Art 3(2) TFEU in the areas (listed in Art 6 TFEU) where the Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States (Art 2(5) TFEU). The Treaty is however silent on this question insofar as concerns the Union’s competence to competence to coordinate the economic and employment policies of the Member States (Art 2(3) TFEU) and to define and implement a common foreign and security policy (Art 2(4) TFEU) and there is no case law of the ECJ on this issue. On the relationship of Art 3(2) TFEU to the Union’s competence in the area of the Common Foreign and Security Policy, see Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do such Distinctions Matter?’ (n 4), 39–40. 8 Art 216(1) TFEU confers upon the Union competence to conclude international agreement ‘where the Treaties so provide’, where ‘the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’, or where ‘the conclusion of an agreement is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’.

296  Joni Heliskoski competence. The EU would have such competence whenever one of the conditions set out in Article 216(1) TFEU is present and there is a legal basis conferring upon the EU a power to act. The Member States, on the other hand, would remain competent to the extent the EU has not exercised its competence in the sense of Article 2(2) TFEU and to the extent it has no exclusive competence under Article 3(2) TFEU. Up to recent times, however, these seemingly straightforward principles have proven a source of a considerable confusion in the practice concerning the conclusion of international agreements in general and mixed agreements in particular. The source of this confusion is two-fold. First, it has been argued, even before the Court of Justice (ECJ or Court), that in areas falling within the shared competence of the EU and its Member States, the EU cannot exercise its competence externally if it has not first exercised its competence internally by adopting common rules in the sense of Article 3(2) TFEU.9 Secondly, it has been argued that, in the context of an international agreement falling in part within the EU’s exclusive competence and in part within its non-exclusive, with no aspect of the agreement falling outside the scope of the EU’s competence, the agreement should be concluded as an EU agreement instead of a mixed agreement. In other words, the EU’s institutions, the latter argument runs, would not be entitled to refrain from exercising the EU’s shared competence in situations in which the EU would in any event exercise its exclusive competence and could not allow the Member States to become contracting parties to the agreement in their own right.10 In the light of the Court’s case law, however, it is clear that both of the above arguments concerning the exercise of the EU’s non-exclusive competence are misconceived. Insofar as concerns, first, the right of the EU to exercise its non-exclusive external competence in those cases where the EU has not previously exercised its internal (or external) competence, it is submitted that that question ought to have been considered as being clarified already a long time ago. Indeed, as early as in Opinion 1/76 concerning an agreement establishing a European laying-up fund for inland waterway vessels in the field of transport – which is an area of shared competence – the ECJ explained that the competence of the Community to enter into international commitments is not limited to the situations in which the Community has previously exercised its internal competence. According to the Court, [a]lthough the internal Community measures are only adopted when the international agreement is concluded … the power to bind the Community vis-à-vis third countries nevertheless flows, by implication from the provisions of the Treaty creating the internal power and insofar as the participation of the Community in the international agreement is, as here, necessary for the attainment of one of the objectives of the Community.11

In other words, while it was manifest that the Community had previously adopted no internal legislation in respect of the subject matter covered by the agreement, it could ­nonetheless exercise its external competence for the purposes of concluding the

9 See Case C-600/14 Germany v Council EU:C:2017:935, paras 31–39. 10 See P Eeckhout, EU External Relations Law, (Oxford, Oxford University Press, 2012) 265 and R Schütze, ‘Federalism and Foreign Affairs: Mixity as a (Inter)national Phenomenon’, in Hillion and Koutrakos (n 4) 57, 83. See also the Opinion of AG Kokott in Case C-13/07 Commission v Council EU:C:2009:190, paras 83–84. 11 Opinion 1/76 (Draft Agreement establishing a European laying-up fund for inland waterway vessels), EU:C:1977:63, para 4.

The Exercise of Non-Exclusive Competence of the EU  297 agreement.12 Another example is Portugal v Council concerning the Cooperation Agreement between the European Community and the Republic of India.13 In the action Portugal had contested the decision to conclude the agreement on the basis of the Treaty provisions on the Common Commercial Policy (now Article 207 TFEU) and development cooperation (Article 208 TFEU), arguing that recourse should have been had to Article 352 TFEU and to participation of all the Member States in the conclusion of the agreement. Notwithstanding the fact that the EU’s competence was not exclusive insofar as concerned development cooperation – implying the right of the Member States to participate in the conclusion of the agreement – the Court dismissed the action. Finally, the principle that the Community’s external competence could be exercised without any internal legislation having first been adopted has also been confirmed by the distinction consistently drawn by the Court between, on the one hand, the existence of the EU’s external competence and, on the other hand, the exclusivity thereof.14 That distinction is now also reflected in the relationship between Article 216(1) TFEU governing the question of existence of the EU’s external competence and Article 3 TFEU governing the question of the exclusivity of that competence.15 Finally, there is also a body of practice of the EU exercising its non-exclusive external competence without a prior exercise of its internal competence, for instance, in respect of ‘readmission agreements’ obliging under certain conditions the EU and the third state concerned to readmit their nationals or certain groups of persons illegally present on the territory of the other party.16 It was, therefore, not surprising that, when confronted with the issue for the first time under the Treaty of Lisbon in Commission v Germany (COTIF), the Court, following three recent opinions of Advocates general,17 confirmed that the EU’s external competence may be exercised without the EU having previously exercised its internal competence.18 In the judgment, the Court also had the occasion to set straight the apparent misconception created by its Opinion 2/15 on the competence of the EU to conclude the Free Trade Agreement between the EU and Singapore. In that opinion, the Court had concluded that the EU could not approve alone the provisions of the agreement relating to non-direct foreign investment, which fall within the shared competence of the EU and its Member States.19

12 The Court observed (at para 7) that the participation by six Member States in the Agreement would be justified ‘solely’ for the purpose of carrying out the obligation to amend the revised Convention of Mannheim for the ­Navigation of the Rhine of 17 October 1868 and the Convention of Luxembourg of 27 October 1956 on the Canalisation of the Moselle. See A Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’, in Dashwood and Hillion (n 1), 3, 13–14. 13 Case C-268/94 Portugal v Council EU:C:1996:461. 14 See Opinion 2/91 (ILO Convention No 170) EU:C:1993:106, paras 13–18; Opinion 1/03 (New Lugano Convention) EU:C:2006:81, paras 114–15; Case C-459/03 Commission v Ireland EU:C:2006:345, paras 93–94; and Opinion 2/00 (Cartagena Protocol on Biosafety) EU:C:2001:664, paras 44–47. 15 See, eg Case C-600/14 Germany v Council EU:C:2017:935, paras 46–50. 16 See Rosas, ‘Exclusive, Shared and National Competence in the Context of EU External Relations: Do such Distinctions Matter?’ (n 4), 34–35. 17 See the opinions of AG Sharpston in Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2016:992, paras 61 and 72–73; AG Wahl in Opinion 3/15 (Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled) EU:C:2016:657, para 119; and AG Szpunar in Case C-600/14 Germany v Council EU:C:2017:296, paras 85–86 and 106 et seq. 18 Case C-600/14 Germany v Council EU:C:2017:935, paras 44–52 and 61–66. See also the Opinion of AG Kokott in Joined Cases C-626/15 and C-659/16 Commission v Council EU:C:2018:362, paras 106–08. 19 Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2017:376, paras 243–44.

298  Joni Heliskoski However, by that conclusion, the Court had merely acknowledged the fact that there had been no possibility of obtaining the required majority within the Council for the EU to be able to exercise alone the external competence that it shares with the Member States in the area of non-direct foreign investment.20 In other words, while the EU’s external competence existed and could have been exercised, the EU had not wished to do so.21 The above finding of the Court also contains an unequivocal rejection of the suggestion that, in the context of an international agreement falling in part within the EU’s exclusive competence and in part within its non-exclusive competence, EU law would require the EU to conclude the agreement alone without the Member States instead of a mixed agreement.22 In that regard, too, the Court followed a consistent line of opinions of Advocates General concerning the exercise of the EU’s external competence, all of which had argued, albeit with certain nuances, that, in matters falling within the EU’s non-exclusive competence, there is essentially a political choice, ultimately to be made by the Council, as to whether to exercise EU competence for the purpose of concluding an agreement as a EU agreement or, alternatively, to refrain from doing so, thereby enabling the participation of the Member States in the conclusion of a mixed agreement.23 It is submitted that that finding is also entirely consistent with the Court’s case law pre-dating the entry into force of the Treaty of Lisbon. The Court had acknowledged that irrespective of whether EU competence for the conclusion of a given agreement existed, the Member States were nevertheless entitled to participate in the conclusion thereof, if the EU’s competence was not exclusive in respect of the agreement in its entirety.24 One may thus conclude that in cases where an international agreement falls within the scope of the EU’s competence, the EU is entitled to exercise that competence even when the competence concerned is not exclusive, without there being a requirement for the EU to have previously exercised the competence in question. Insofar as concerns agreements falling within the EU’s competence only part of which is exclusive, the EU is entitled to refrain from exercising its non-exclusive competence, thereby making it possible for the Member States to participate in the conclusion of the agreement as a mixed agreement.

20 Case C-600/14 Germany v Council EU:C:2017:935, para 68. 21 It is an open question whether certain principles governing the exercise of Union competence such as the principle of subsidiarity (Art 5(3) TEU) could prevent the Union from exercising its non-exclusive competence in a given case. On the principle of subsidiarity in this context, see I Bosse-Platière, ‘L’application du principe de subsidiarité dans le cadre de l’action extérieure de l’Union européenne’, in E Neframi and M Gatti (n 3), 111, esp 121. 22 See Opinion of AG Kokott in Joined Cases C-626/15 and C-659/16 Commission v Council EU:C:2018:362, fn 71. According to her, it can be inferred from the COTIF judgment that ‘the Union can decide in each individual case not to exercise its inherent powers in an area of shared competences fully, but only partially, thereby allowing scope for autonomous action by the Member States.’ 23 See the opinions of AG Sharpston in Opinion 2/15, EU:C:2016:992, paras 73–75; AG Wahl in Opinion 3/15, EU:C:2016:657, paras 119–21; and AG Szpunar in Case C-600/14 Germany v Council EU:C:2017:935, para 84. 24 See esp Opinion 2/91 (ILO Convention No 170) EU:C:1993:106; Opinion 1/94 (WTO Agreement) EU:C:1994:384; Opinion 2/92 (Third Revised Decision of the OECD on national treatment) EU:C:1995:83; ­Opinion  2/00 (Cartagena Protocol on Biosafety) EU:C:2001:664; and Case C-94/03 Commission v Council EU:C:2006:2. See also Case C-459/03 Commission v Ireland EU:C:2006:345, para 96 where the Court refers to the need to establish ‘whether and to what extent the Community, by becoming a party to the [United Nations Convention on the Law of the Sea], elected to exercise its external competence in matters of environmental protection’ (emphasis added).

The Exercise of Non-Exclusive Competence of the EU  299

III.  Circumscription of the Freedom of the Institutions and the Member States to Conclude Facultative Mixed Agreements in Matters Falling within the EU’s Non-Exclusive Competence A.  Preliminary Observations The acknowledgement of the right of the Council to refrain from exercising the EU’s nonexclusive competence for concluding an international agreement that falls in part within the exclusive and in part within the non-exclusive competence of the EU means that agreements which could be concluded as EU agreements may instead be concluded as mixed agreements. Indeed, in most cases it is the non-exclusive nature of the EU’s competence rather than the lack thereof that explains the use of mixed agreements.25 While one should distinguish facultative mixity from what Allan Rosas has called ‘false mixity’ – that is, the conclusion of mixed agreements on ‘grounds that are manifestly untenable’26 or on the basis of ‘Member State manipulation with a view of making them mixed’27 – one may ask whether the ECJ, by accepting, as a matter of principle, the right of the Council to refrain from exercising the EU’s non-exclusive competence in the context of concluding an international agreement, is unduly undermining unity in the international relations of the EU as well as efficiency in both entry into force and application of international agreements concluded by the EU. In assessing that question, it will however have to be remembered that EU law in general and the case law of the ECJ contains rules and principles that are capable of considerably limiting the use of mixed agreements. First, it is not the case that any element, however marginal, of non-exclusive competence legitimises the participation of the Member States in the conclusion of an international agreement. In this respect, there are two important principles in the Court’s case law that circumscribe the freedom of the institutions in deciding whether an agreement is to be concluded as a EU agreement or a mixed agreement. Secondly, EU law may require the institutions and the Member States, in the context of the conclusion of international agreements with third countries, to take account of certain obligations flowing from the Treaties that may limit the discretion as to whether an agreement should become either a EU agreement or a mixed agreement. These rules and principles of EU law will be addressed in the following.

B.  The Principle of Absorption The first of the principles circumscribing the discretion of the institutions in the exercise of non-exclusive competence of the EU and in the choice between a EU agreement and a mixed

25 See J Heliskoski, ‘Mixed Agreements: the EU Law Fundamentals’, R Schütze and T Tridimas (eds), Oxford Principles of European Union Law, Vol 1: The European Union Legal Order (Oxford, Oxford University Press 2018), 1174, 1178–80. 26 Rosas (n 1), 147. 27 PJ Kuijper et al (eds), The Law of EU External Relations (Oxford, Oxford University Press 2013) 105.

300  Joni Heliskoski agreement is known as the ‘principle of absorption’28 or the ‘test of the centre of gravity’.29 Under this principle, the provisions of an international agreement which fall within the EU’s non-exclusive competence but which are subsidiary, ancillary or incidental to their nature in the light of the principal aim and content of the agreement may be ‘absorbed’ by the principal elements of the agreement falling within the EU’s exclusive competence. Hence, notwithstanding the presence of such subsidiary, ancillary or incidental provisions falling within the EU’s non-exclusive competence it is not open to the institutions to conclude the agreement as a mixed agreement. In substance, one is dealing with a particular aspect of the Court’s case law relating to the choice of legal basis of an EU measure. Under that case law, if a measure reveals a twofold purpose, or has a twofold component and if one of those is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the measure must be founded on a single legal basis, namely, that required by the main or predominant purpose or component.30 In the present context, should a legal basis conferring an exclusive competence on the EU be identified as the main or predominant purpose or component, clauses of a subsidiary, ancillary or incidental nature falling outside the scope of the EU’s exclusive competence would not justify the conclusion of the agreement as a mixed agreement. The ECJ applied reasoning of this kind for the first time in Opinion 1/78 regarding the International Agreement on Natural Rubber. It took the view that the nature of the agreement as either a Community agreement or a mixed agreement could not be determined in terms of ‘clauses of an altogether subsidiary or ancillary nature’ but rather by having regard to the ‘essential objective’ of the agreement and, therefore, the former could not justify the conclusion of the agreement as a mixed agreement.31 The provisions of the Agreement concerning the financing of the buffer stock, on the other hand, constituted an essential feature of the scheme for regulating the market set up by the Agreement and could not, therefore, be absorbed by the elements of the agreement falling within the Community’s exclusive competence in the area of the Common Commercial Policy. Accordingly, should the Member States finance the buffer stock, they would also be entitled to participate in the agreement.32 While the Court applied the principle of absorption also in P ­ ortugal v ­Council33 – holding that the provisions of the Cooperation Agreement between the

28 See, eg Chamon (n 3) referring to the ‘doctrine of absorption’. 29 See, eg D Kleimann and G Kübek, ‘The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements in the EU: The Case of CETA and Opinion 2/15’, (2018) 45 Legal Issues of Economic Integration 13 (referring to the ‘centre of gravity’ theory). 30 See, eg Case C-377/12 Commission v Council EU:C:2014:1903, para 34. 31 Opinion 1/78 (International Agreement on Natural Rubber) EU:C:1979:224, para 56. The Court did not explicitly indicate whether the clauses of an ancillary or subsidiary nature – concerning technological assistance, research programmes, the maintenance of conditions of labour and consultations relating to national tax policies – were regarded as falling within the Community’s non-exclusive competence or within the competence of the Member States. See, eg JHH Weiler, ‘The External Relations of Non-Unitary Actors: Mixity and the Federal Principle’, in The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Harvard, Cambridge University Press, 1999) (originally published in D O’Keeffe and HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983)), 130, 177–78. Rosas (n 1), 130, seems to regard Opinion 1/78 as an instance of the Court applying the principle of absorption to ancillary clauses falling within the competence of the Member States. Chamon (n 3), 142–47, however, takes the view that neither Opinion 1/78 nor any other case decided by the Court has ‘actually involved the absorption of provisions coming under exclusive national competence’ (at 146). 32 Opinion 1/78 (International Agreement on Natural Rubber) EU:C:1979:224, para 62. 33 Case C-268/94 Portugal v Council EU:C:1996:461. See Chamon (n 3), 143–44.

The Exercise of Non-Exclusive Competence of the EU  301 ­ uropean C E ­ ommunity and the Republic of India relating to energy, tourism and culture as well as drug abuse control and intellectual property fell within the Community’s competence on development cooperation – that case is, as already explained above, an instance of the Community having decided to exercise its non-exclusive competence on development cooperation. Therefore, the principle of absorption did not prevent the participation of the Member States in the agreement, as the EU had decided to negotiate and conclude the agreement concerned as a Community agreement. The Court has also applied the principle of absorption under the Treaty Lisbon. In Commission v Council concerning the European Convention on the legal protection of services based on, or consisting of, conditional access, the Court held that the ‘supposedly criminal-law nature’ of the Convention’s provision on seizure and confiscation did not prevent the recourse to Article 207 TFEU as the legal basis for the signature of the Convention by the EU given that the provisions concerned ‘[did] not reflect the Convention’s primary objective.’34 Thus, the Convention fell within the EU’s exclusive competence in its entirety. Similarly, in Commission v Council concerning the Enhanced Partnership and Cooperation Agreement with Kazakhstan, the Court ruled that while some of the provisions of the Agreement ‘[displayed] certain links’ with the Common Foreign and Security Policy, those links were not sufficient to justify the inclusion of Article 37 TEU as a legal basis of the decision on the signing of that agreement.35 They could therefore not be regarded as a distinct component of that agreement, but as ‘incidental’ to that agreement’s two main components constituted by the common commercial policy and development cooperation.36 However, given the nature of development cooperation as an area of non-exclusive EU competence, that finding would have no incidence on the nature of the agreement as a mixed agreement, unless the institutions decided to conclude the agreement as an EU agreement, as they did in the case of the Cooperation Agreement with India. The principle of absorption means that it will not be open to the institutions to refrain from exercising the EU’s non-exclusive competence in respect of parts of an international agreement that are subsidiary, ancillary or incidental to the primary objective and content to the agreement. If the primary objective(s) and content of an agreement fall(s) within the EU’s exclusive competence, the principle of absorption stands in the way of concluding the agreement as a mixed agreement.

C.  The AETR Principle The second aspect of the Court’s case law considerably circumscribing the freedom of the institutions (and the Member States) in deciding whether an agreement is to be concluded either as a EU agreement or a mixed agreement relates to the manner in which the Court has developed its jurisprudence originating in the AETR judgment.37 While no comprehensive 34 Case C-137/12 Commission v Council EU:C:2013:675, para 72. The Court also pointed out the provisions concerned would require the sanctions and measures referred to therein to be exclusively of a criminal-law nature. 35 Case C-244/17 Commission v Council EU:C:2018:662, paras 42–43. 36 ibid, paras 44–46. 37 Case 22/70 Commission v Council EU:C:1971:32. For recent studies on the post-Lisbon case law concerning the AETR principle, see A Rosas, ‘EU External Relations: Exclusive Competence Revisited’ (2015) 38 Fordham Int’l LJ 1073, 1084–94, and M Chamon, ‘Implied exclusive powers in the ECJ’S post-Lisbon jurisprudence: The continued development of the ERTA doctrine’ (2018) 55 CML Rev 1101–41.

302  Joni Heliskoski account of that jurisprudence may be provided in the present context, attention should be drawn to those aspects of the case law that have the effect of preventing the institutions from deciding not to exercise the EU’s competence on such parts of an international agreement that would, on an autonomous assessment, fall within the EU’s non-exclusive competence. A principal role in this regard has been played by the interpretation the Court gave to the AETR principle for the first time in its Opinion 2/91 on Convention No 170 of the International Labour Organisation. It follows from that opinion that the effect of exclusion, through the AETR principle, of the competence of the Member States to enter into international commitments may not be limited to the scope of application of the common rules adopted by the EU. It is sufficient that the international commitments in question are ‘concerned with an area which is already covered to a large extent by Community rules’.38 In other words, as the Court explained in the opinion concerning the Lugano Convention, for an exclusive competence of the EU to conclude an international agreement to arise, it is not necessary for the areas covered by the international agreement and the EU legislation to coincide fully.39 So, even if parts of an agreement fall outside the scope of the common rules and, accordingly, the EU’s exclusive competence, the EU nonetheless has exclusive competence to conclude the agreement if the agreement is concerned with an area covered ‘to a large extent’ by the common rules. Post-Lisbon, the Court has not only recognised the continued relevance of the ‘­Opinion 2/91 doctrine’.40 It has also further clarified the parameters of the test in a way that is arguably conducive to facilitating the establishment of the EU’s exclusive competence for the conclusion of international agreements. First, the Court has shown a tendency to define the relevant ‘area’ in a broad manner.41 Secondly, the Court has introduced the notion of a ‘horizontal effect’ that is capable of altering the scope of the common EU rules even when the international commitments at issue fall outside the actual scope of application those rules.42 However, the most illustrative example of the Court’s application of the AETR principle under the Lisbon Treaty is probably provided by the Court’s treatment of the provisions of the Free Trade Agreement with Singapore concerning maritime transport services.43 Notwithstanding the fact that the commitments in the agreement were significantly broader than the rights granted to third-country nationals and companies Regulation No 4055/86 governing the application of the principle of the freedom to provide services to maritime transport,44 the Court concluded that they affected the common rules established by the 38 Opinion 2/91 (ILO Convention No 170) EU:C:1993:106, para 25. 39 Opinion 1/03(New Lugano Convention) EU:C:2006:81, para 126. 40 See Case C-114/12 Commission v Council EU:C:2014:2151, paras 70 and 73–74. 41 In ibid, para 80, the Court held that it was the entire subject matter of agreement that was to be understood as the relevant area in respect of which the existence of common rules was to be verified. Cf, the Opinion of AG Sharpston, EU:C:2015:43, para 111, according to whom the analysis was to be conducted separately in respect of each and every part of the international agreement in question. 42 Case C-114/12 Commission v Council EU:C:2014:2151, paras 87 and 98. On the application of the ‘Opinion 2/91 doctrine’ see also Opinion 1/13 (Accession of a third State to the Hague Convention on the civil aspects of international child abduction) EU:C:2014:2303, paras 75–90. 43 Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2017:376, paras 168–224. 44 Notably, the Court paid no attention to the fact that no Union legislation existed in respect of provision of maritime transport services between third countries and the EU through modes 3 (ie, commercial presence) and 4 (ie, presence of natural persons). Moreover, under mode 1 (cross-border supply of services) the scope of application of Regulation 4055/1986 ([1986] OJ L378/1) is limited to, inter alia, nationals of a Member State established in a third state as well as shipping companies established in a third state and controlled by nationals of a Member State, the vessels of which the flag of the Member State concerned.

The Exercise of Non-Exclusive Competence of the EU  303 Regulation or altered the scope thereof.45 In Commission v Council concerning the submission, on behalf of the EU and its Member States, to the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) of, first, a reflection paper relating to a future proposal to create a marine protected area in the Weddell Sea and, secondly, three proposals for the creation of marine protected areas and a proposal for the creation of certain special areas, the Court however refused to recognise an exclusive competence of the EU based on Article 3(2) TFEU.46 It held, first, that the sphere of application of the international commitments could not be regarded as falling within an area covered ‘to a large extent’ by common rules.47 Secondly, the Court concluded that, in any event, the Commission had not provided sufficient evidence or arguments showing that those commitments might affect any common rules or alter their scope as required by Article 3(2) TFEU.48 The Court’s case law shows that the exclusivity aspect of the AETR principle may have a very similar effect on the right of the institutions to refrain from exercising EU competence on the parts of an international agreement that, if considered separately, would fall within the EU’s non-exclusive competence, as the principle of absorption. They both limit the scope for facultative mixity in favour of agreements concluded only by the EU.

D.  The Duty of Cooperation and Related Obligations Based on the EU Treaties In limiting the right of the Member States to participate in mixed agreements, both the principle of absorption and the AETR principle operate as principles governing the attribution of competence as between the EU and the Member States. The principle of absorption may lead to the identification of a legal basis (or bases) conferring upon the EU exclusive competence for the conclusion of an agreement, through elimination of any (subsidiary) legal bases under which the EU’s competence would be non-exclusive. Similarly, the AETR principle, as interpreted by the ECJ in the case law based on Opinion 2/91, is capable of extending the EU’s exclusive competence even to those parts of an agreement that would not, on an autonomous assessment, fall within the scope of the common rules established by EU legislation. However, as consistently emphasised by the Court, including in the context of participation by the EU and the Member States in international agreements, the Member States are also required to exercise their competence consistently with EU law.49 In particular, in the case law concerning the duty of cooperation between the EU’s institutions and the Member States,50 the Court has reminded that, in all areas corresponding to the ­objectives 45 Opinion 2/15 (Free Trade Agreement with Singapore) EU:C:2017:376, paras 189–90. It is almost ironic that the Court itself acknowledged that Regulation No 4055/86 extends the freedom to provide services to international maritime transport services in a ‘delimited manner’ (para 195). 46 Joined Cases C-626/15 and C-659/16 Commission v Council EU:C:2018:925, paras 110–24. The Court also rejected the (principal) plea of the Commission claiming that the measures in question fall entirely or, in any event, mainly within the exclusive competence of the Union in the area of the conservation of marine biological resources under the common fisheries policy (Art 3(1)(d) TFEU). 47 ibid, paras 117–20. 48 ibid, paras 121–23. 49 See, eg Case C-466/98 Commission v United Kingdom EU:C:2002:624, para 41 and M Cremona, ‘Defending the Community Interest: the Duties of Cooperation and Compliance’, in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 125. 50 See especially C Hillion, ‘Mixity and Coherence in EU External Relations: the Significance of the “Duty of Cooperation”’, in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited (Oxford, Hart Publishing, 2010)

304  Joni Heliskoski of the Treaties, Article 4(3) TEU (ex Article 10 EC) requires the Member States both to facilitate the achievement of the EU’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaties.51 In that regard, therefore, the question arises as to whether the duty of cooperation could also have incidence upon the right of the Member States to insist upon their participation in mixed agreements in areas of the EU’s non-exclusive competence and, as a corollary, the right of the Council to refrain from exercising the EU’s non-exclusive competence. Indeed, in his argument for limiting the use of facultative mixity, Eeckhout has invited the Court to rely on Article 4(3) TEU in order to rule out the participation of the Member States in the agreement in the above situation.52 However, it now clearly follows from the Court’s case law in general and the COTIF judgment in particular53 that one should outright reject the argument relying on the duty of cooperation as limiting the scope of facultative mixity, at least as a general proposition.54 Any other conclusion would obviously run counter the essential distinction in the EU Treaties between exclusive and non-exclusive EU competence as well as the fact that, in the framework concerning the categories of EU competence, non-exclusive competence is still very much the rule and exclusive competence the exception. Moreover, as Chamon rightly points out, the Court has never relied on the duty of cooperation as a means of precluding facultative mixity but rather as a principle, the purpose of which is to make joint participation by the EU and the Member States more manageable.55 Nor has even the Commission ever claimed before the Court that there would be an obligation incumbent on the Council to exercise the EU’s non-exclusive competence, or an obligation upon the Member States to refrain from insisting on their participation in an agreement that falls in part within the exclusive and in part within the non-exclusive competence of the EU. Hence, as EU law currently stands, the duty of cooperation is not capable of limiting the use of facultative mixity, at least not as a matter of general principle. It seems however that the above conclusion might be subject to certain exceptions. In other words, a case might be made for the suggestion that, in certain specific circumstances, there could be an obligation, ultimately based on Article 4(3) TEU and the Court’s case law on the duty of cooperation, requiring the Council to exercise not only the EU’s exclusive but also its non-exclusive competence for the conclusion of an international agreement. Such an obligation is hinted at, albeit obiter dictum, by Advocate General Wahl in his opinion on the competence of the EU to conclude the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.56 While admitting that the choice between a (facultative) mixed agreement and an EU-only

87; C Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the Union’, in M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008) 10; Eeckhout (n 10) 241; and R Holdgaard, External Relations Law of the European Community. Legal Reasoning and Legal Discourses (Alphen aan den Rijn, Kluwer, 2008) 156–63. 51 See Case C-246/07 Commission v Sweden EU:C:2010:230, para 69 and the case law cited. 52 Eeckhout (n 10), 265. 53 Case C-600/14 Germany v Council EU:C:2017:935, and section II above. 54 The same conclusion is reached by Chamon (n 3), 160–61 and 165. 55 ibid, at 160–61. 56 Opinion of AG Wahl in Opinion 3/15 (Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled) EU:C:2016:657, paras 119–21.

The Exercise of Non-Exclusive Competence of the EU  305 a­ greement is generally a matter for the discretion of the ‘EU legislature’, he notes that ‘[t]hat decision, as it is predominantly political in nature, may be subject to only limited judicial review.’ Hence, the legality of a measure can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. Advocate General Wahl then gives two examples where a decision to conclude a mixed agreement might reach that threshold. That could be the case, for instance, if the choice for mixity might, ‘because of the urgency of the situation and the time required for the 28 ratification procedures at national level, seriously risk compromising the objective pursued’, or ‘cause the Union to breach the principle pacta sunt servanda’. The opinion does not however further elaborate these scenarios, nor provide concrete examples of their application. As regards other conceivable circumstances limiting the use of facultative mixed agreements under the principle of duty of cooperation, one should probably also pay attention to the case law in which the Court has required the Member States to take account of a prospect of the EU exercising its competence either internally or in the context of another international agreement.57 In that regard, one could identify from the case law at least one set of circumstances that could possibly be regarded as circumscribing the choice of the institutions and the Member States in the context of the choice between an EU agreement and a (facultative) mixed agreement. The Court has namely held that as soon as the institutions have initiated a procedure for implementing an obligation to act based on the Treaty, the institutions and the Member States are under a duty to use ‘all the legal and political means at their disposal’ to ensure the participation of the Union in international agreements relevant to that obligation.58 In other words, even if the competence of the EU were (still) non-exclusive, the Member States would be required, by Article 4(3) TEU, to refrain from exercising their competence and to facilitate the exercise of the EU’s non-exclusive competence. Admittedly, that case law concerns the rather specific situation where primary law required to the institutions to take measures by a certain date59 and, therefore, may not apply to circumstances where no such Treaty obligation exists. However, in Commission v Luxembourg60 and Commission v Germany,61 the Court has also circumscribed the freedom of Member States to enter into bilateral agreements in the area of inland waterway transport where there was no Treaty obligation for the institutions to act but rather a foreseeable prospect of action by the EU in the matter concerned. In these cases, the Council had already authorised the Commission to negotiate an EU agreement in the area covered by the bilateral agreements of the two Member States, and this prospect of the EU exercising its competence had the consequence of depriving the Member States of their right to exercise theirs, at

57 See J Heliskoski, ‘The Obligation of Member States to Foresee, in the Conclusion and Application of their International Agreements, Eventual Future Measures of the European Union’, in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 545. 58 Joined Cases 3, 4 and 6/76 Cornelis Kramer and others EU:C:1976:114, paras 44–45. 59 Under Art 102 of the 1973 Act of Accession, the Council was required to determine, from the sixth year after the accession at the latest, conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea. 60 Case C-266/03 Commission v Luxembourg EU:C:2005:341. 61 Case C-433/03 Commission v Germany EU:C:2005:462.

306  Joni Heliskoski least without consulting the Commission.62 One could therefore argue that the freedom of the institutions and the Member States to conclude a (facultative) mixed agreement might be more limited in a matter that is, at same time, subject to a procedure that is pending in the EU’s institutions and aimed at either conclusion of (another) international agreement or enactment of internal legislation. Arguably, the constraining effect based on a prospect of the EU exercising its competence would however depend on, among other things, the stage that the decision-making procedure of the EU has reached as well as on the degree of interference resulting from the possible exercise of Member State competence with the action foreseen by the EU. Under this hypothesis, one would be dealing with an ‘emerging’ exclusive external competence of the EU based on the AETR principle – a competence that would eventually become exclusive when the action by the EU resulted in the coming into being of common rules in the sense of that principle. The AETR principle likewise being based on the duty of cooperation enshrined in Article 4(3) TEU,63 the distinction between, on the one hand, a non-exclusive competence subject to specific duties of the above kind and, on the other hand, exclusive competence ex-AETR is necessarily a fine one.64 Therefore, to uphold that distinction, the conceivable situations where the conclusion of facultative mixed agreements in areas of non-exclusive competence should be defined in such a way that a non-exclusive competence does not turn into an exclusive one.

IV.  Obligations Concerning the Exercise of EU and Member State Competence in the Context of the Conclusion of Facultative Mixed Agreements Once the EU is entitled to decide not to exercise fully its non-exclusive competence for the conclusion of an international agreement, thereby opening up the possibility of the participation therein by the Member States in their own right, the question arises as to the rules and principles of EU law governing the exercise of their respective competences in this context. While the present contribution cannot provide a comprehensive account of the law governing the conclusion and implementation of mixed agreements,65 the following analysis focuses on certain issues specific to the conclusion and ratification of facultative mixed agreements. Insofar as concerns the decision of the institutions not to exercise the EU’s non-exclusive competence, the question arises as to whether there is an obligation of EU law to indicate, ultimately in the decision of the Council on the conclusion of the agreement, the extent to which the EU elects to exercise (or not) its competence.66 That question has been raised by the 62 See also Case C-246/07 Commission v Sweden EU:C:2010:230. 63 See Case 22/70 Commission v Council EU:C:1971:32, paras 21–22. 64 In that regard, see also Opinion 1/03 (New Lugano Convention) EU:C:2006:81, where the Court held that in the application of the AETR principle ‘[i]t is also necessary to take into account not only the current state of Community law in the area in question but also its future development, insofar as that is foreseeable at the time of that analysis’ (para 126, emphasis added). 65 See, eg Heliskoski (n 25) at 1185–98. 66 The present analysis is specifically concerned with obligations of EU law and therefore excludes the question of so-called declarations of competence required under certain mixed agreements. See J Heliskoski, ‘EU Declarations

The Exercise of Non-Exclusive Competence of the EU  307 recent opinion of Advocate General Kokott in which she refused to recognise the mixed character of the action by the EU and its Member States in the context of the CCAMLR on the ground that, in her view, the Council had not sufficiently precisely identified the elements of the measures in respect it had allegedly decided to refrain from exercising the EU’s (shared) competence. According to the Advocate General, it was ‘not apparent anywhere in the contested decisions’ that the EU refrained from exercising its competence ‘in respect of a specific element of the measures envisaged’ or wished to leave those measures to the responsibility of the Member States.67 On that basis, Advocate General Kokott considered the EU to have exercised its competence fully and proposed to annul the contested measures insofar as they had been adopted by the EU and its Member States.68 Indeed, one could think of several reasons why a decision on the conclusion of an international agreement on behalf of the EU should give indication as to the parts to which that decision is supposed to apply. This would seem to be required for the identification of the legal basis (or bases) of the decision, which depends on the object and purpose of the measure concerned, and, as a corollary, for the application of the correct decision-making procedure to be followed by the institutions. The scope of the exercise of EU competence may also have a bearing on the status of the provisions of the agreement in either EU law or national law of the Member States, which may in turn have implications not only on the Court’s jurisdiction to interpret the agreement as well as effect (direct effect or otherwise) of its provisions. The rights and obligations of the EU and the Member States in the implementation of the agreement might also be affected, including in the content of settlement of disputes or with view to the attribution of international responsibility. The above considerations notwithstanding, the EU’s political institutions have traditionally been strikingly reluctant to specify the elements in respect of which the EU refrains from exercising its non-exclusive competence. There has rather been a tendency not to give any indication of the fact that non-exclusive competence is not being exercised, let alone articulate the extent of the exercise of their respective competence in a concrete fashion at the stage of conclusion of mixed agreements.69 Nor has the Court of ever annulled a decision of the Council concerning the conclusion of a mixed agreement, or found the Member States to be breach with their Treaty obligations, on the ground that there had been no indication of the elements in respect of which the EU had decided not to exercise its nonexclusive competence.70 The case law has rather focused on defining whether an exclusive of Competence and International Responsibility’, in M Evans and P Koutrakos (eds), The International Responsibility of the European Union. European and International Perspectives (Oxford, Hart Publishing, 2013) 189. 67 Opinion of AG Kokott in Joined Cases C-626/15 and C-659/16 Commission v Council EU:C:2017:935, para 115. 68 ibid, para 117. 69 Rare examples deviating from this practice include the decisions of the Council on the conclusion on behalf of the United Nations Framework Convention on Climate Change (Council Decision (94/69/EC) of 15 December 1993, [1994] OJ L33/11) and the WTO Agreement (Council Decision (94/800/EC) of 22 December 1994, [1994] OJ L336/1), providing some (albeit very general) indication the extent of the exercise of Union and Member State competence. 70 In Case C-28/12 Commission v Council EU:C:2015:282 concerning the annulment of Decision 2011/708/EU of the Council and of the Representatives of the Governments of the Member States of the European Union, ­meeting within the Council, of 16 June 2011, on the signing, on behalf of the Union, and provisional application of the Air Transport Agreement (as well as the related Ancillary Agreement) between the United States of America, of the first part, the European Union and its Member States, of the second part, Iceland, of the third part, and the Kingdom of Norway, of the fourth part ([2001] OJ L283/1), the Court objected to the merging, in a single act, of a decision of the Council and that of the Member States and not, as such, to the absence of the distinction between

308  Joni Heliskoski competence to conclude an agreement exists and, if the Court has found that it does, no guidance has been given as to the scope of the EU’s non-exclusive competence, let alone the exercise thereof. Against that background, it was not surprising that the Court did not follow the opinion of Advocate General Kokott in the CCAMLR case.71 The Court merely established that the contested measures had fell within the shared competence of the EU and its Member States in the area of environmental protection, without even addressing the question of whether the Council had actually decided to refrain from fully exercising that competence in respect of the contested measures.72 The Court’s approach is not only consistent with the previous case law on mixed agreements but also attentive of a central rationale of concluding international agreements through the mixed procedure. That procedure, while allowing the joint participation of the EU and the Member States in international agreements, enables contentious issues concerning the concrete distribution of competence between them to be left open, to be decided on a case-by-case basis in the course of the implementation of the agreement. Moreover, the Court’s approach is attentive of the fact that, as the Court consistently reminded us, the division of external competence is likely to change as a result of the development of EU law.73 These virtues of the mixed procedure would seem to outweigh the negative aspects of not precisely indicating in respect of which parts of an agreement the Council intends to refrain from exercising the EU’s non-exclusive competence. There is, however, one aspect concerning a decision of the institutions to refrain from exercising the EU’s non-exclusive competence and to conclude a facultative mixed agreement that deserves to be highlighted, if only for the fact that it has been raised by a number of times by Allan Rosas both in his writings74 and at various fora. Unlike when the EU concludes a mixed agreement as a result of the lack of the EU’s competence, it is difficult to reconcile that choice with the scenario in which some of the Member States do not become contracting parties to the agreement. In other words, if it is assumed that the EU does not exercise its non-exclusive competence in respect of the whole of the agreement and if, at the same time, some of the Member States do not become contracting parties to the agreement, the participation in the agreement on the part of the ‘European Union’ risks becoming ‘incomplete’. In this scenario, there would seem to exist two possibilities. First, to consider

the elements falling within the competence of the Union and those falling within the competence of the Member States. 71 Joined Cases C-626/15 and C-659/16 Commission v Council EU:C:2018:925. 72 Interestingly, the Court however held that in the context of the CCAMLR the Union could not have exercised its competence in environmental matters in a manner that would have excluded the Member States, as this would have been incompatible with international law. See ibid, paras 127–33. This was the case, first, because Art VII(2)(c) of the Canberra Convention, read in conjunction with Art XXIX(2) thereof, subordinated the accession by regional economic integration organisations such as the EU to that Convention (and their membership to the CCAMLR) to the accession (and membership) of their Member States and, secondly, because the Union is not a contracting party to the Antarctic Treaty the consultative parties to which have primary responsibility for developing the Antarctic agreements and for safeguarding their coherence. ‘In those circumstances’, the Court held, ‘to permit the European Union to have recourse, within the CCAMLR, to the power which it has to act without the participation of its Member States in an area of shared competence … might well … undermine the responsibilities and rights of [the] consultative parties [to the Antarctic Treaty] – which could weaken the coherence of that system of agreements and, ultimately, run counter to Article V(1) and (2) of the Canberra Convention.’ 73 See, eg Opinion 1/78 (Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports) EU:C:1978:202, para 35. 74 Rosas, ‘Mixed Union – Mixed Agreements’ (n 1), 132 (fn 36) and Rosas, ‘The Future of Mixity’ (n 4), 373.

The Exercise of Non-Exclusive Competence of the EU  309 that the EU is, in the end, exercising its (non-exclusive) competence in respect of the entire agreement or, second, to require all of the Member States to ratify the agreement. Given that the first possibility would obviously be inconsistent with the decision not to exercise EU competence, rendering the participation by the Member States merely symbolic, the second possibility would be the only one capable of sustaining the choice of the EU not to exercise its competence. Therefore, one could suggest that such a choice would always have to be coupled with an obligation of EU law incumbent upon the Member States to ratify a mixed agreement.

V. Conclusions The case law of the ECJ concerning the EU’s competence to conclude international agreements has traditionally focused on defining the scope of the EU’s exclusive competence. Once the Court has concluded that no exclusive EU competence exists, it follows that the Member States are entitled to participate in the conclusion of the agreement. Much less attention has been devoted to, on the one hand, the right of the EU to exercise its nonexclusive external competence and, on the other hand, the limits to the right of the EU to refrain from exercising its non-exclusive competence. More recently, the attention in the scholarship appears to have turned more towards exploring questions concerning the exercise of shared competence in general and the scope for the conclusion of facultative mixed agreements in particular. In that regard, the underlying objective has been to identify the constraints, if any, placed by EU law upon the right of the institutions to refrain from exercising the EU’s non-exclusive competence and, as a corollary, to pave way for a limitation of the use of facultative mixed agreements in favour of agreements concluded solely by the EU. In the light of the Court’s recent case law, there seems to be only a limited scope for replacing facultative mixed agreements by EU agreements through circumscription of the exercise of the EU’s non-exclusive competence. While the Court recognises the right of the EU to exercise its non-exclusive competence (COTIF), it appears to be unwilling to place upon the institutions any general obligation to do so (EU-Singapore FTA, COTIF, CCAMLR). As in the past, the approach of the Court to limit the use of mixed agreements continues to focus on the upholding and developing the EU’s exclusive competence, notably through the application of the principles of absorption and pre-emption (AETR), instead of the circumscription of the right of the institutions to refrain from exercising the EU’s non-exclusive competence. While the Court’s approach is likely to limit to some extent the use of mixed agreements in areas such as transport, sustainable development and the environment, it is unlikely to lead to the disappearance of facultative mixed agreements at any greater scale. The same would seem to be true with the possibilities of limiting the use of facultative mixed agreements through Article 4(3) TEU and the duty of cooperation. While the Court might be prepared to rule out the conclusion of a (facultative) mixed agreement in certain specific circumstances, those principles are unlikely to prove wrong the general prediction made by Allan Rosas shortly after the entry into force of the Treaty of Lisbon: ‘Mixity is here to stay.’75 The EU-Singapore FTA, COTIF and CCAMLR line of cases show

75 Rosas,

‘The Future of Mixity’ (n 4), 367.

310  Joni Heliskoski that we have not completely left, and are not likely to leave, the era of shared competence characterised by the conclusion of facultative mixed agreements. Should it be considered desirable to make more frequent use of the EU’s non-exclusive competence in the context of conclusion of international agreements, an effort should not only be made to convince the Member States of the practical benefits of concluding EU rather than facultative mixed agreements. One would also have to convince the Member States that the decision to exercise EU competence in respect of a particular agreement would not have the effect of depriving the Member States of their competence to conclude other international agreements in the same area or to adopt legislation with a view to implementing such international agreements. While an international agreement concluded by the EU might, in principle, constitute common rules in the sense of Article 3(2) TFEU,76 thereby giving rise to pre-emption through a ‘reverse AETR’ effect, the ECJ, in defining the parameters of such pre-emption, should not construe the exclusion of the competence of the Member States exceedingly strictly. Even though the prospect of such pre-emption is not by any means the only factor explaining the attractiveness of facultative mixed agreements, assurances from the ECJ towards the Member States might well be conducive to an increased use of the EU’s non-exclusive competence.



76 Opinion

1/94 (WTO Agreement) EU:C:1994:384, para 85.

21 Extradition and EU Law: An Unexpected ‘Pas de Deux’ JEAN-CLAUDE BONICHOT

I. Introduction Some years ago, one would not have imagined that the Court of Justice (ECJ, or Court) ought to deal with extradition cases. However, with the adoption of the framework decision of 2002,1 extradition between Member States was replaced by the European arrest warrant. Within the European Union, extradition procedures have been traded for a simple ‘surrender’ that takes place in the framework of the cooperation between judicial authorities.2 This very efficient mechanism is a landmark achievement of the Area of Freedom, Security and Justice and has become, by now, a standard procedure. As such, it has given rise to numerous judgments of the ECJ clarifying various questions regarding its application. Nevertheless, in the relations between Member States and third states, ie states that do not belong to the EU, extradition remains an act of sovereignty. Therefore, it is prone to have political implications. For example, the evolution of the position of the French government in the course of the years 1981–83 is telling. It was trying to strike a balance between, on the one hand, asylum, which is enshrined in the French Constitution and is part of the republican tradition as well, and, on the other hand, extradition as part of the fight against terrorism.3 That is why extradition is an act of a double nature: seen from the side of the requested state, it constitutes a unilateral act of domestic law, but between the latter and the demanding state, it constitutes an international agreement which determines the conditions and scope of the handover of the requested person. That is of first importance, namely, for the implementation by the requesting state, of the principle of specialty of extradition. According to this principle, the handed over may be prosecuted only for the crimes for which he has expressly been requested, or punished within the limits of the sentence mentioned in the request for extradition.4 1 Council Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1 (EAW Framework Decision). 2 Recital 1 of the EAW Framework Decision states: ‘The formal extradition procedure should be abolished among the Member States’. 3 See JC Bonichot, ‘L’évolution récente de l’extradition passive’ (1984) Annuaire français de droit international 19. 4 Concerning the system of the European arrest warrant, the ECJ has stated that although an additional sentence imposed for the same criminal offence that the one for which the European arrest warrant has been issued, and in the same decision, has not been expressly mentioned in the arrest warrant, is legally applicable in the requesting state: see ECJ of 6 December 2018, IK, C-551/18.

312  Jean-Claude Bonichot However, it is well established that there is no longer any domain of law escaping EU law. Even if a field of activity remains within the competences of the Member States, these competences must be exercised in a way compatible with EU law. A good example is to be found in the questions related to nationality, one of the strongest competences of the Member States: the landmark case Rottmann shows that a Member State is no longer completely free to withdraw the nationality of one of its nationals, because the latter has also the status of a European citizen.5 Similar considerations have been applied recently in the field of extradition. Over the past three years, ie a surprisingly short period showing the growing importance of the subject matter, the ECJ has laid down the general framework of extradition from one Member State to a third state and has determined the conditions imposed by EU law. This has been achieved by three judgments of the ECJ’s Grand Chamber, namely in the cases Petruhhin, Pisciotti and Raugevicius, handed down in the period from 2016 to 2018. These judgments shed light on the importance of citizenship in the European construction. As the dedicatee of these lines put it: ‘Putting citizens at the centre of the European construction is emblematic not only of the special nature of Union Law but also of the move away from a purely economic integration organisation towards an ­all-encompassing “union of people”. ’6

II.  First Steps: Petruhhin In Petruhhin,7 the Court stated in substance, for the first time, that an EU citizen, finding himself in another Member State than that of his own, cannot be treated as any foreigner and must, to some extent, benefit from the protection that is foreseen for nationals of that Member State against their extradition to a third country. In that case, the person concerned was an Estonian national who was in Latvia when his extradition was requested by Russia because he was being prosecuted in the latter state for a drug-trafficking offence. He argued before the Latvian competent authorities that he had to be treated like a Latvian national: whereas, according to the Latvian Constitution, Latvia does not extradite its own nationals, the Latvian authorities where obligated, he submitted, to dismiss the Russian demand. The case was taken to the Supreme Court of Latvia which turned to the ECJ, asking if, and under which conditions, an EU citizen could be handed over to a third state. In order to reach its conclusion, the ECJ relied upon classic principles of EU law, relating to the fundamental freedoms, in particular the free movement of persons within the EU territory. Every national of a Member State who moves from his country of origin to another one within the EU makes use of this freedom and, by way of consequence, falls within the scope of application of EU law. As an EU citizen, he enjoys the right of being treated in the country to which he has moved in the same manner as a national of this country, as enshrined in Article 18 TFEU which provides that ‘any discrimination on grounds of nationality shall be prohibited’. Limitations to the freedom of movement need to be justified



5 Case

C-135/08 Janko Rottman v Freistaat Bayern EU:C:2010:104. Rosas and L Armati, EU Constitutional Law: An Introduction, (Oxford, Hart Publishing, 2012) 143. 7 Case C-182/15 Aleksei Petruhhin v Latvijas Republikas Ģenerālprokuratūra EU:C:2016:630. 6 A

Extradition and EU Law: An Unexpected ‘Pas de Deux’  313 by objective considerations, and are only admissible if they are necessary for the protection of the interest that they are intended to secure, and only in so far as those objectives cannot be attained by less restrictive measures. It is true that cooperation with third countries in order to combat crime and to avoid impunity is a legitimate goal possibly justifying the extradition of an EU citizen by a Member State. However, a less restrictive measure for the freedom of movement would be to verify first whether the interested person may be prosecuted and sentenced in his Member State of origin. To this end, the authorities of the latter have to be asked if they wish to act accordingly. In other words, a kind of priority has to be granted to a possible prosecution within the EU in order to avoid, if possible, prosecution of EU nationals in a third country. The ECJ has not pulled a prohibition of extradition of EU citizens to third countries out of the hat. Relying on EU citizenship, it has built a system in which such an extradition is only justified if the Member State of origin of the interested person cannot, or is not willing to, prosecute this person itself.

III.  Classic EU Law in a New Context? Such a legal construct could appear surprising in light of the fact that the EU Treaties are silent on the issue of third-country extradition – on what grounds is it based? One must at the outset point out that there are some legal instruments dedicated to facilitate the cooperation of the EU and its Member States with third states, although they only exist in limited areas. For example, the EU has signed agreements with third states for the transfer of persons suspected of having committed acts of piracy, in view of having them prosecuted in these states.8 Another important agreement is the Agreement on extradition between the European Union and the United States of America of 25 June 2003 (EU-US Agreement).9 The EU has also concluded an Agreement on mutual legal assistance with the US.10 Therefore the ECJ did not operate in a legal no man’s land when it shaped its case law on extradition. But, truth be told, the very question of whether Member States have or have not some obligations, under EU law, when they are asked by a third state to hand over somebody in the course of criminal proceedings did not find any answer in EU law, apart, to some extent, as we will later see, from when the EU-US Agreement is applicable. The Court’s reasoning in Petruhhin is fundamentally based on EU citizenship and on the rights attached to it. The first right at stake is the right to freely move and reside within the territory of the Member States, enshrined in Article 21 TFEU. Detailed rules are provided

8 See eg Case C-658/11 European Parliament v Council of the European Union EU:C:2014:2025. 9 [2003] OJ L181/27. 10 [2003] OJ L181/34. These agreements were signed on 25 June 2003, and approved by Council Decision 2009/820 of 23 October 2009 ([2009] OJ L 291/40). The Council decision is based both on Art 24 of the former TEU, which concerned the agreements in the area of common foreign and security policy (CFSP), and now finds expression in Art 37 TEU, and in Art 38 of the same TUE which concerned the police and judicial cooperation in criminal matters, provision which no longer exists, whereas these agreements now fall in the general regime of the international agreements enshrined in Art 218 TFEU.

314  Jean-Claude Bonichot for in Directive 2004/3811: every citizen of the Union is granted the right to reside in another Member State for a period up to three months; he can stay for a longer period if he is a worker, a student, or has sufficient resources and is covered by sickness insurance. The second one is the right not to be discriminated against on grounds of nationality ‘within the scope of application of the Treaties’. The right stems from a principle which dates back to the foundation of the European Economic Community (EEC) and is one of the pillars of the European construction. The principle of non-discrimination has been given a very wide scope by the ECJ. In 1989, in the Cowan case,12 the Court stated that a British citizen, who was assaulted at the exit of a metro station while sightseeing in Paris, could rely on French law granting compensation for everybody who is otherwise unable to obtain compensation for the harm suffered. That is namely the case when the perpetrator of the assault cannot be identified. The Court said that, as a tourist, Mr Cowan had to be regarded as a recipient of services in France. Consequently, he fell within the scope of Community law: by prohibiting ‘any discrimination on grounds of nationality’, said the ECJ, the EEC Treaty requires that persons in a situation governed by Community law be placed on a completely equal footing with nationals of the Member State. In so far as this principle is applicable it therefore precludes a Member State from making the grant of a right to such a person subject to the condition that he reside on the territory of that State – that condition is not imposed on the State’s own nationals.13

Any difference in treatment constitutes a ‘restriction’ of the rights granted by the EU ­Treaties, in this instance the freedom of movement. Therefore, reserving the protection against extradition for nationals, and excluding other Union citizens from it, must be regarded as such a restriction. According to the settled case law of the ECJ, in order to be compatible with EU law, a restriction needs to be justified. It can only be so if it is based on objective considerations, and is proportionate to the legitimate objective of the national provisions. There was no difficulty for the Court in finding that combating crime at an international level and preventing the risk of impunity constitute such a legitimate objective. Nevertheless, in order to comply with the requirement of proportionality, a national measure has to be necessary to attain this goal. Therefore one must verify if there is not a ‘less restrictive’ measure which could also be adequate. At this stage, the ECJ observed in Petruhhin that the rule of non-extradition of nationals, which is not a general rule,14 but nonetheless quite common in various Member States, is generally based on, and justified by, the possibility of the requested Member State itself prosecuting particularly serious criminal offences committed by its nationals, even when they occurred outside its territory.15 There are, indeed, many examples of national criminal

11 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77. 12 Case 186/87 Ian William Cowan v Trésor public EU:C:1989:47. See also ‘Chronicle’ by JC Bonichot in (1989) Revue de sciences criminelles et de droit pénal comparé 569. 13 ibid, para 10. 14 Some states do not have such a rule. In France, it was enshrined in the statute on extradition of 10 March 1927 and is still applicable. But the French Conseil d’Etat stated in 1994 that it is not of constitutional level. This opinion was confirmed in 2002, when the Conseil d’Etat was asked to give its opinion on the European arrest warrant. See Y Gaudemet, B Stirn, T Dal Farra and F Rolin, Les grands avis du Conseil d’Etat (Paris, Dalloz, 2008) 40. 15 Case C-182/15 Aleksei Petruhhin v Latvijas Republikas Ģenerālprokuratūra EU:C:2016:630, para 39.

Extradition and EU Law: An Unexpected ‘Pas de Deux’  315 laws providing for jurisdiction to prosecute crimes committed abroad subject to a link to the national’s state. On that basis, the ECJ established that, when it comes to the extradition of EU citizens to a third state, a ‘less restrictive’ ‘alternative measure’ consists of enabling the Member State of origin of the interested person to claim the latter in order to prosecute him according to its national legal order. For that purpose, the initially requested Member State, ie the one which has been addressed by a third state, shall, on the basis of the principle of sincere cooperation enshrined in Article 4(3) TEU, contact the Member State of origin by using the existing framework of cooperation and mutual assistance provided for by EU law or by other multilateral or bilateral agreements. If the Member State of origin is able to prosecute its own citizens and decides to proceed accordingly, it has to issue a European arrest warrant which will be, by definition, given priority over the extradition request. By cooperating that way the initially requested Member State ‘acts in a manner which is less prejudicial to the exercise of the right to freedom of movement while avoiding, as far as possible, the risk that the offence prosecuted will remain unpunished’.16 This solution relies, however, on the idea that the Member State of origin generally has jurisdiction by virtue of its national criminal law.

IV.  EU-US Extradition: Pisciotti Priority for prosecution inside the Area of Freedom, Security and Justice is not absolute, as shown by the second case brought before the ECJ: Pisciotti.17 Mr Romano Pisciotti, an Italian national, was prosecuted in the United States for having participated in anticompetitive concerted practices and agreements. A court in Florida had issued an arrest warrant against him. As he was flying from Nigeria to Italy, he was arrested and jailed by the German police during a stopover in Frankfurt am Main. On the grounds that German law prohibits the extradition of German nationals, he objected to his extradition to the United States, and took his case to the Constitutional Court of Germany (Bundesverfassungsgericht). But the latter considered that the principle of non-discrimination on grounds of nationality did not apply to extradition to third states. Consequently, the German authorities handed over Mr Pisciotti to the United States. Immediately afterwards, Mr Pisciotti filed an action for damages against the Federal Republic of Germany. The Regional Court of Berlin, competent for that action, referred questions to the ECJ, asking whether the case of Mr Pisciotti fell within the scope of EU law. In the affirmative, it asked whether the German authorities had broken EU law and whether that breach was ‘sufficiently serious’ – as required by the case law of the ECJ18 – to entitle Mr Pisciotti to compensation by the Federal Republic. It is worth noting that the ECJ points out that the case falls within the scope of application of EU law, not only because the interested person has moved from one Member State to another, but also because the German authorities had to decide the matter by applying the EU-US Agreement, which itself is part of EU law.

16 Para 49 of the judgment. 17 Case C-191/16, ECJ 10 April 2018. 18 See eg Joined Cases C-6/90 and C-9/90 Andrea Francovitch and Danila Bonifaci and others v Italian Republic EU:C:1991:428

316  Jean-Claude Bonichot That said, the first question to settle was to determine the impact of the EU-US Agreement. The latter enables the contracting parties to invoke grounds for refusal to extradite provided for in a bilateral agreement concluded between Member States of the EU and the United States. The Germany-US Extradition Treaty states that neither of the contracting parties shall be bound to extradite its own nationals, thus creating a legal situation comparable to that of the Petruhhin case. However, the EU-US Agreement also contains in its Article 10 rules to determine the course of action in cases where several states request the same person. These rules are rather precise, as some governments pointed out in the course of the proceedings before the ECJ, and could indicate that, in a case such as Mr Pisciotti’s, priority should be given to the United States’ request. The ECJ’s answer to that argument, even if it is curtly formulated, constitutes an important addition to the reasoning in Petruhhin: the priority given to a European arrest warrant does not preclude inevitably an extradition to the United States. In other words, the priority of prosecution inside the EU is not absolute, and does not form an insurmountable obstacle to extradition to third states. In the light of these considerations, did Germany breach EU law by handing over Mr Pisciotti to the United States? As the ECJ notes, the German authorities had informed their Italian counterparts of the United States’ request concerning this Italian citizen. However, despite that exchange of information, the Italian authorities did not claim his transfer. As a result, Germany was correct in complying with the request of the United States, and thus did not breach EU law, although it would not have extradited the interested person had he been a German national.

V.  Completing the Picture: Raugevicius Whereas Petruhhin and Pisciotti both concerned prosecutions of EU citizens by third states for crimes committed on their territories, extradition can also be requested for the enforcement of a custodial sentence. Such a request was at issue in the case Raugevicius, giving rise to a judgment of the ECJ on 13 November 2018.19 The interested person was a Lithuanian national who also was in possession of a Russian passport. When Russia requested his extradition to serve a four-year prison sentence for a drug-trafficking offence, Mr Raugevicius was staying on Finnish territory where his case was brought before the Supreme Court of Finland. That court asked the ECJ if the solution developed by the latter for cases of prosecution was also applicable for requests concerning the enforcement of custodial sentences. The legal framework can be described as follows: Finland does not extradite its own nationals. In conformity with the possibilities provided by the European convention on extradition, which it has ratified, Finland considers as such all nationals of Nordic countries, as well as all foreigners residing in these states. A sentence imposed by a court of a third state on Finnish nationals (in the broad sense of the notion) may be served in Finland if the third state, as well as the interested person, agree.20 19 Case C-247/17 Denis Raugevicius EU:C:2018:898. 20 According to the Finnish law on international cooperation for the enforcement of criminal sentences. In addition, Finland is also a contracting party to the International Convention on the Transfer of Sentenced Persons of 1983, as well as the other Member States and the Russian Federation.

Extradition and EU Law: An Unexpected ‘Pas de Deux’  317 As Advocate General Yves Bot pointed out, two elements formed an obstacle to the outright application of the Petruhhin case law. First, prosecution in the Member State of origin, in this instance, Lithuania, would have been contrary to the principle of ne bis in idem. Second, as Mr Raugevicius was residing in Finland, his surrender to the Lithuanian authorities might be rendered impossible by the EAW Framework Decision on the European arrest warrant itself, because the latter allows for the refusal of the surrender of people who are staying in, or are a resident of, the executing Member State.21 In light of these considerations, the ECJ opted for another solution, creating a new kind of ‘priority’: the foreign sentence has to be served in the requested Member State if it is possible according to its law and if the interested person resides permanently in that state and demonstrates ‘a certain degree of integration’ in it. Indeed, if the second condition is met, the situation of the interested person is comparable to the one of the nationals of the requested Member State. Where the domestic law of a Member State provides for a foreign sentence to be executed on its territory, the EU citizens residing there must be treated in the same way as the nationals of this Member State. Therefore, it is for the national authorities to do everything within their possibilities to obtain the consent of the requesting state, according to all international instruments available to them. This construction of the rules governing extradition by the ECJ is consistent with European criminal law, which aims to further the chances of social rehabilitation of offenders. On the contrary, if the interested person cannot be regarded as residing permanently in the requested Member State, the issue of his extradition is to be decided on the basis of the domestic and international law applicable. Consequently, if, in the case of Mr Raugevicius, Finnish courts were to confirm that Finnish law provided for the refusal of extradition of residents of this country, these courts would have to verify whether he resided in Finland and was somehow integrated into ­Finnish society. If that was the case, the competent authorities must offer him the possibility to serve the sentence imposed on him by Russian courts on Finnish territory, provided that Russia’s consent was obtained. In any event, whereas Finnish law provides for the refusal of extradition of everybody regarded as a resident, it is up to the national authorities to check this point from a purely domestic point of view.

VI.  Implications of the Case Law Although they are in line with the classic case law of the ECJ relating to the fundamental freedoms of the EU, the judgments in Petruhhin, Pisciotti and Raugevicius add an important contribution to the status of EU citizens. They nevertheless raise some legal and practical questions. The most obvious is the question of the compatibility of this case law with the agreements on extradition signed by the Member States as well as by the Union. It is not excluded that these agreements may be interpreted in a manner compatible with the requirements of EU law as determined by the Court. However, it is apparent that most of them did not f­oresee the implications of the EU citizenship. Some third states may be reluctant to embrace the consequences of this new case law. 21 If the latter undertakes to enforce itself the sentence according to its domestic law: Art 4, para 6 of the EAW Framework Decision. See Opinion of AG Bot in Case C-247/17 Denis Raugevicius EU:C:2018:616.

318  Jean-Claude Bonichot Another problem was put forward in the course of the proceedings before the ECJ, ie that the Member State of origin lacks the means for implementing this solution. Indeed, in order to issue a European arrest warrant, a Member State must be fully informed about the criminal proceedings followed in the requesting state. Obtaining the necessary elements comes up against many obstacles in practice. Obviously, in order to respect the rights derived from EU citizenship, there is a certain need to adapt the different instruments of judicial cooperation in order to overcome these kinds of problems.

VII.  Other Recent Developments Recently, in the fields of extradition and European arrest warrant, other questions have arisen as well, contributing to the development of EU law from a procedural as well as from a material point of view. Most importantly, the ECJ made it clear that nobody can be handed over to a state, where the judicial system does not respect the principles of independence and impartiality and, more generally, fundamental freedoms. Even if the ECJ has not yet had the opportunity to make such a statement in a case concerning a request for extradition, it results without doubt from its case law relating to the European arrest warrant.22 In the same line, nobody can be expelled or be extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. This principle derives from the European Convention on Human Rights (ECHR), as well as from Article 19 of the Charter of Fundamental Rights of the European Union (Charter).23 The accession of the requesting state to international treaties guaranteeing respect for fundamental rights is not in itself sufficient to ensure adequate protection against the risk of ill-treatment, and the requested state is therefore bound to assess the existence of that risk.24 The ECJ also had the opportunity to apply these principles in the context of the Brexit procedure triggered by the British government on the basis of Article 50 TEU. The interested person, who was residing in Ireland, had been requested by the United Kingdom. He argued, before the Irish courts, that due to the UK’s exit from the EU that state would no longer grant him the guarantees provided for by EU law. In reply to this argument, the ECJ stated that the mere notification by the UK of its ‘intention’ to leave the Union did not hinder another Member State from complying with a European arrest warrant.25 Indeed, if 22 See, concerning surrender for prosecution in the requesting State: Case C-216/18 PPU LM EU:C:2018:586, about the contested judicial reforms in Poland. For example, such a principle forms part of the law applicable in France, as a ‘general principle of the law of extradition’: see the decision of the French Conseil d’Etat in the ­Lujambio Galdeano case of 26 September 1984 (1984) Rec CE 380. 23 In the case of surrender for the enforcement of a custodial penalty based on a European arrest warrant: Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Caldararu EU:C:2016:198; in the case of an extradition order in Case C-473/15 Peter Schotthöfer and Florian Steiner GbR EU:C:2017:633, concerning the case of an Austrian citizen who had been sentenced in absentia to life imprisonment in the United Arab Emirates, with the possibility that the proceedings may be resumed and result in a death penalty sentence. 24 Judgment in Petruhhin, paras 51–59. 25 The notion of ‘intention’ is important not only in the context of a European arrest warrant, but also (and even more so) for the answer to the question whether the intention to exit the EU can be withdrawn unilaterally: see Case C-621/18 Andy Wightman and Others v Secretary of State for Exiting the European Union, EU:C:2018:999.

Extradition and EU Law: An Unexpected ‘Pas de Deux’  319 there is no reason to believe that the requested person would be at risk of being deprived of his rights according to EU law, the warrant has to be executed. Furthermore, the UK is a contracting party of several international agreements protecting human rights, namely the ECHR, and its judicial system offers all guarantees from this point of view. Hence, there is no reason to refuse the execution of an arrest warrant issued by this state.26 From a procedural point of view, it should be noted that national courts, according to the domestic law applicable, are often asked to give an opinion to the competent authorities on a request of extradition. This opinion is binding on these authorities: if the opinion is a positive one, it is up to them to decide to turn over the interested person to the requesting state, but if it is not, they cannot. Although such an opinion is not precisely a ‘judgment’ in the most common terms, as the national court concerned doesn’t take the final decision, the court is, nevertheless, considered to be a ‘court or tribunal’ within the meaning of Article 267 TFEU. The settled case law of the ECJ, which seeks to take into account the particularities of the different legislations of the Member States, confirms this point of view.27 Even if the interested person has left the requested Member State, the reference for a preliminary ruling is admissible as long as the extradition proceedings are pending before the national courts. Indeed the competence of the ECJ depends of the national proceeding, and if the contested decision of extradition is confirmed by the national courts, it may be executed at any time if the interested person is arrested on the territory of the Member State concerned. 

In a recent speech given in Portugal, Allan Rosas said: ‘It should be clear to anyone that our common values and principles do not only concern the EU’s own institutions but also reach fully to the national Member State level.’28 The Court’s recent case law on extradition is a luminous illustration of this statement. It shows that the differences between the nationals of the Member States are fading away, due to the EU citizenship, even in areas in which EU law remains discreet. It is also a sign of the growing importance of the Area of Freedom, Security and Justice in an ever more interconnected world, and makes it apparent that the Member States and the European institutions may need to enhance the cooperation with third states, in the name of EU citizenship. Last but not least, it shows that the ECJ can solve new and delicate questions while remaining faithful to its most classic case law.

26 Case C-327/18 RO EU:C:2018:733. 27 For the Nederlandse Raad van State: Case 36/73 NV Nederlandse Spoorwegen v Netherlands Minister of Transport and Waterway EU:C:1973:130; for the Italian Consiglio di Stato: Joined Cases C-69/96 to C-79/96 Maria Antonella Garofalo EU:C:1997:492. 28 Francisco Lucas Pires Distinguished Lecture 2018, Católica Global School of Law, Lisbon 22 May 2018.

320

22 Expulsion of a Member State from the European Union: Ultimate Remedy? PEKKA POHJANKOSKI

I.  Introduction: Expulsion as the Ultimate Remedy? Can a Member State be expelled from the European Union? In political rhetoric, calls for expulsion surface from time to time.1 Although these are often non-meritorious, there are situations where the possibility of expelling a Member State might seem worth considering. Think of a military aggression by one Member State against other Member States, which permanently paralyses the functioning of the EU. If that seems too implausible, perhaps a more conceivable scenario could be a breakdown of democratic institutions and the observance of human rights in a Member State. What about persistent disregard for the EU’s essential rules and the judgments of the Court of Justice (ECJ)? If a Member State’s actions jeopardise the EU itself – and if all the available legal remedies under the EU Treaties have been exhausted – should expulsion not be available as a last-resort safeguard? Should the other members simply acquiesce in their peer’s persistent non-compliance, or perhaps dissolve the EU? Arguably, the expulsion of a Member State might be, in the end, a matter of raw political expediency. Its inherently political character notwithstanding, such expulsion presents intriguing challenges from the law’s internal perspective.2 Since the EU is quite incapable of coercing its Member States by force, the ultimate conceivable legal remedy would appear to be their expulsion from the EU. However, the silence of the EU Treaties complicates any analysis of the legality of such a course of action. If the remedies explicitly foreseen in the EU Treaties are regarded as exhaustive, it could be inferred from this silence that no remedy of expulsion should be legally available. Yet, the silence could also imply that EU law does not regulate the issue, in which case general international law could govern the matter. As the present volume looks to the future, it seems appropriate to pursue an enquiry into the legality of Member State expulsion, without necessarily suggesting that the hypothesis would ever become a reality. Although the issue could be approached from different

1 See eg D Robinson, ‘Hungary should be ejected from EU, says Luxembourg’ (Financial Times, 13 September 2016), www.ft.com/content/a541282a-7988-11e6-97ae-647294649b28, accessed 12 December 2018. 2 See, on the internal perspective of the law, eg M Zamboni, Law and Politics: A Dilemma for Contemporary Legal Theory (Berlin/Heidelberg, Springer, 2008) 4.

322  Pekka Pohjankoski angles, the present contribution focuses primarily on the legal analysis of such expulsion. This enquiry inevitably transcends the mere question of whether Member State expulsion is possible. Assuming that a right to expel exists, where does the locus of such power reside: in the EU or in the other Member States collectively? What kind of procedures should be followed to carry out an expulsion? It may also be enquired what, if anything, a power to expel would mean for our understanding of the EU as a polity. And conversely, if expulsion were not possible under any circumstances, what would that tell us about the compact between the Member States? In order to discuss these issues, the present contribution first outlines the broader framework of expulsion from international organisations under public international law (section II). Second, the focus is turned to what the EU’s black-letter law, including the travaux ­préparatoires of the EU Treaties, has to say about expulsion of Member States (section III). Having concluded in the previous section that the EU Treaties foresee no explicit expulsion power, the fourth section examines, first, whether the EU institutions nonetheless possess an implied power to expel a Member State (section IVA) and, second, whether, under general international law, the other Member States retain a power to remedially expel one of their peers as a last-resort measure (section IVB). The concluding remarks evaluate the findings and provide some reflections on the problematic nature of expulsion as a remedy (section V).

II.  The Broader Context: Expulsion from International Organisations International organisations may provide in their constituent instruments that a Member State may be expelled from the organisation. The charter of the first general international organisation, the Covenant of League of Nations of 1919, provided in its Article 16(4) that a state, which has violated ‘any covenant of the League’, could be ‘declared to no longer be a member of the League’.3 Similarly, as the Charter of the United Nations (UN Charter) was drafted, a provision for the expulsion of a member state was – after some debate – inserted.4 Thus, according to Article 6 of the UN Charter, a member ‘which has persistently violated the Principles contained in the present Charter may be expelled … by the General Assembly upon the recommendation of the Security Council’.5 As a further example, the Statute of 3 Covenant of the League of Nations (adopted 28 June 1919, entered into force 10 January 1920) 108 LNTS 188. The rationale for the expulsion clause was, according to contemporary documents, to address the situation where the member violating the Covenant would claim to still possess the right to vote, thereby potentially blocking the work of the League whenever unanimity would be required. CW Jenks, ‘Expulsion from the League of Nations’ (1935) 16 British Yearbook of International Law 155. The only time the expulsion provision was used was when the Soviet Union (USSR) was expelled following its attack on Finland in 1939. For more on the circumstances of the expulsion, see eg LB Sohn, ‘Exclusion or Forced Withdrawal from an International Organization’ (1964) 77 Harvard Law Review 1381, 1387–91, and A Duxbury, The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge, Cambridge University Press, 2011) 107–09. 4 On the background of the adoption of the clause, see LB Sohn, ‘Exclusion or Forced Withdrawal from an International Organization’ (1964) 77 Harvard Law Review 1381, 1397–1401. 5 No state has ever been expelled from the UN, despite attempts to expel, most notably, South Africa. See, eg B Conforti and C Focarelli, The Law and Practice of the United Nations (Leiden/Boston, Brill Nijhoff, 2016) 52. On the various attempted expulsions, see eg A Duxbury, The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge, Cambridge University Press, 2011) 109–14.

Expulsion of a Member State from the European Union: Ultimate Remedy?  323 the Council of Europe provides for expulsion in cases where a member ‘seriously’ violates, in particular, ‘principles of the rule of law and of the enjoyment by all persons within its ­jurisdiction of human rights and fundamental freedoms’.6 Unlike these prominent founding documents, those of many other international organisations contain no comparable expulsion clauses. Expulsions have nonetheless occasionally occurred even in the absence of an explicit clause to that effect. For example, while the Charter of the Organization of American States (OAS) provided for no such power, the organisation expelled Cuba in 1962, following the military overthrow of the Batista government by Fidel Castro.7 The reason articulated for the expulsion was ‘[t]hat the present Government of Cuba, which has officially identified itself as a Marxist-Leninist government, is incompatible with the principles and objectives of the inter-American system’.8 Similarly, South Africa was expelled from the Universal Postal Union (UPU) in 1979, because of its racial discrimination policies.9 Characterised by the intertwinement of the law of international organisations with high politics, these expulsions were controversial.10 As such, not all members of the organisations in question endorsed them unanimously.11 While it is thus clear that international organisations may insert an expulsion clause into their constituent instruments, legal scholarship has traditionally taken a rather critical view of the possibility to construe, absent a specific treaty provision, an implied power to expel a Member State. In the first comprehensive monograph on the termination of membership in international organisations, Nagendra Singh, later President of the International Court of Justice (ICJ), considered that ‘it is a well-established principle of international law that where a constituent instrument is silent … there is no inherent right vested in the organization … to expel … a member’.12 Similarly, noting that many states and organisations expressed their disagreement with the expulsions of Cuba and South Africa at the time, Derek W Bowett, in his textbook on international organisations, thought that ‘in the absence of an express constitutional power to expel, the general rule is that a member cannot be expelled.’13 As regards the implied powers of international organisations, the ICJ held in Reparation for Injuries Suffered in the Service of the United Nations that: ‘Under international law, the Organisation must be deemed to have those powers which, though not expressly provided

6 See Art 8 of the Statute of the Council of Europe (adopted on 5 May 1949, entered into force 3 August 1949), ETS 1. 7 Charter of the Organization of American States (adopted 30 April 1948, entered into force 13 December 1951), 119 UNTS 3 (OAS Charter). For a detailed treatment of the events, see KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 167. 8 The Eighth Meeting of Consultation of Ministers of Foreign Affairs, held in Punta del Este, Uruguay, from 22 to 31 January 1962, Resolution VI ‘Exclusion of the Present Government of Cuba from Participation in the Inter-American System’, reproduced in (1962) 56 American Journal of International Law, 610. 9 See KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 66–75. 10 CG Fenwick, ‘The Issues at Punta Del Este: Non-Intervention v. Collective Security’ (1962) 56 American Journal of International Law 469 (explaining that legal question of whether human rights breaches in Cuba amounted to situation justifying intervention on grounds of Rio Treaty setting up framework for collective security in A ­ mericas was mixed with perceived threat of international communism). 11 Eg certain African states promoted the expulsion of South Africa from the UPU, while many others refused to acknowledge its legality. See Declaration of the member states of the European Community, annexed to European Commission Reply to Written Question No 948/79 of the European Parliament, [1980] OJ C41/17–18. 12 N Singh, Termination of Membership of International Organisations (London, Stevens & Sons, 1958) 79. 13 DW Bowett, The Law of International Institutions (London, Stevens & Sons, 1982) 393.

324  Pekka Pohjankoski in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.’14 Under this test, expulsion would have to be ‘essential to the performance of [the organisation’s] duties’. As regards the Cuban and South African situations, Konstantinos D Magliveras, author of another monograph on the issue of expulsion of states from international organisations, has taken a negative view on the legality of the implied powers of the organisations in question.15 According to him, the expulsion of Cuba from the OAS took place before the organisation had indicated that Marxism-Leninism was not compatible with its system; similarly, the ousting of South Africa from the UPU was based on the condemnation of apartheid, and not on any violation of the specific purposes and aims of the organisation itself.16 However, other commentators have nuanced such categorical analyses. Assessing the expulsion of Cuba from the OSA, Louis B Sohn noted that the expulsion was duly carried out, at least as a matter of fact, regardless of its contested legality. As such, he thought that a regional organisation could seemingly assert an implied right to expel one of its members, ‘at least if the decision is properly camouflaged’.17 Similarly, the Editorial Comments of the American Journal of International Law remarked that it would seem that the breach of the obligations of a multilateral treaty by one of its parties releases the others from the obligations of that treaty, even where the latter is ‘like the Charter of the OAS, in the nature of the statute of a corporate body’.18 On this view, the focus is not on the implied power of the organisation itself, but on its constituent members’ treaty-making power. In fact, the instruments creating international (intergovernmental) organisations are, despite their specific characteristics, treaties.19 As such, they fall within the purview of the Vienna Convention on the Law of Treaties (VCLT).20 From this perspective, the members of an international organisation wanting to expel one of their members in the absence of an expulsion clause could invoke breaches of treaty obligations or changes that have occurred in the circumstances regarding the operation of the international organisation. Understood in terms of treaty law, the expulsion of a member state may be justified, on the one hand, if it can be shown that the latter has breached an essential provision of the treaty. According to Article 60(2)(a)(i) VCLT, ‘a material breach of a multilateral treaty by

14 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, (1949) ICJ Rep 74, p 12 (assessing whether UN has power to seek reparation on behalf of victim). 15 KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 257 (‘Permitting an organization to expel Members or suspend their membership rights by simply invoking the feeble doctrine of implied powers cannot be justified.’) 16 See respectively, ibid, 168 and 70. 17 LB Sohn, ‘Exclusion or Forced Withdrawal from an International Organization’ (1964) 77 Harvard Law Review 1381, 1420. He also describes, at 1416, what he calls the ‘forced withdrawal’ of South Africa from another international organisation, the International Labour Organization (ILO), considering that ‘a continuous barrage of insults and exclusions … even though disguised as an invitation to withdraw … is almost indistinguishable from a regular expulsion’. 18 CG Fenwick, ‘The Issues at Punta Del Este: Non-Intervention v. Collective Security’ (1962) 56 American ­Journal of International Law 469, 474. 19 On the distinction between such constitutive instruments and ‘law-making’ treaties (traités-lois), see eg N Singh, Termination of Membership of International Organisations (London, Stevens & Sons, 1958) 5–7. 20 See Art 5 of the Vienna Convention on the law of treaties (with annex) (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (‘The present Convention applies to any treaty which is the constituent instrument of an international organization’).

Expulsion of a Member State from the European Union: Ultimate Remedy?  325 one of the parties entitles … the other parties by unanimous agreement … to terminate it … in the relations between themselves and the defaulting State’. It should be noted that the breach must concern a ‘provision essential to the accomplishment of the object or purpose of the treaty’ and that the other parties should act unanimously.21 Magliveras has estimated that, in the context of international organisations, such breaches could encompass failure to pay financial contributions to the organisation or non-compliance with the judgments of the organisation’s judicial organ.22 In the context of the Cuban expulsion from the OAS, the US government argued that ‘no regional body can be forced to accept or maintain the presence of a government which the members of that regional body determine to be violating the very terms of the charter of that body’.23 On the other hand, Article 62(1)(a) VCLT allows termination of a treaty in the case of a ‘fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties’, when ‘the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty’. This provision codifies the customary international law doctrine of rebus sic stantibus, which could apply also to termination of membership in international organisations. Jerzy Makarczyk, later judge at the ECJ, has written that expulsion from such an organisation could be seen ‘as a measure to make the founding treaty and the whole legal system of the organization operative’. As such, ‘the pacta sunt servanda principle, protecting the state’s membership, could well be opposed by the clausula rebus sic stantibus, … to permit the organization to restore its legal order … by parting with a country which is undoubtedly violating this order.’24 Among the unforeseeable changes potentially justifying expulsion could feature radical changes in the political conditions in the state party to a treaty, at least if the change would have a sufficient nexus with the essential purpose of that treaty. Thus, in Gabčikovo-Nagymoros Project (Hungary v Slovakia), the ICJ opined that Hungary could not rely on the doctrine of rebus sic stantibus to terminate its treaty concerning a system of locks on the Danube simply because of the collapse of the communist regime in Czechoslovakia, since that treaty mostly concerned energy production, flood control and navigation.25 By contrast, the ECJ held in Racke that the EU could validly suspend the application of its Cooperation Agreement with Yugoslavia due to pursuit of hostilities, particularly in light of the agreement’s far-reaching objectives which would require ‘the maintenance of a situation of peace’ and ‘the existence of institutions capable of ensuring implementation of the cooperation

21 Art 60(3)(b) VCLT. See also B Simma and CJ Tams, ‘Reacting against Treaty Breaches’, in DB Hollis, The Oxford Guide to Treaties (Oxford, Oxford University Press, 2012) 583, 591. 22 KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 234. 23 46 Dep’t St Bull 657, 689 (1962), cited in J Blocher, M Gulati and LR Helfer, ‘Can Greece Be Expelled from the Eurozone? Toward a Default Rule on Expulsion from International Organizations’, in F Allen et al (eds), Filling the Gap in Governance: The Case of Europe (Florence, European University Institute, 2016) 148. 24 J Makarczyk, ‘Legal Basis for Suspension and Expulsion of a State from an International Organization’ (1982) 25 German Yearbook of International Law 476, 488–89. 25 Gabčikovo-Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, (1997) ICJ Rep 7, para 104 (‘In the Court’s view, the prevalent political conditions were … not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed.’)

326  Pekka Pohjankoski envisaged’.26 It is noteworthy that the doctrine of fundamental change of circumstances could be available for expulsion purposes even when the Member State to be expelled has committed no material breach.27 More recently, Joseph Blocher, Mitu Gulati and Laurence R Helfer have argued that that the absence of an explicit expulsion clause in the constituent document of an international organisation should not necessarily preclude it from expelling its members.28 They regard treaty silence as evidence of the fact that the parties have not agreed on a flat ban on expulsion.29 As such, unless the organisation has specifically excluded the possibility of expulsion, they contend that such a possibility should be available, putting forward a threepart framework for assessing how the default rule should operate.30 First, a well-behaving state may not be expelled against its will in the absence of an explicit expulsion provision. Second, members that seriously fail to respect their treaty commitments could be expelled, as a remedial measure. Thirdly, in situations where ‘members are not actively undermining the organization, but are nonetheless falling significantly short of their obligations’, Member States could be expelled against their will, but they should be owed compensation as a result.31

III.  EU Treaties: The Absence of an Explicit Expulsion Clause By virtue of its origins, the EU is a treaty-based international organisation. However, from the very beginning, the EU Treaties have been considered as an autonomous regime, different from ordinary treaties. As such, the ECJ has described them as being the EU’s ‘constitutional charter’, ‘albeit concluded in the form of an international agreement’.32 Indeed, the EU Treaties establish, ‘by contrast with ordinary treaties’,33 a ‘new order of international law’,34 later simply referred to as ‘a new legal order’.35 That legal order ‘establishes … the necessary

26 Case C‑162/96 A Racke GmbH & Co v Hauptzollamt Mainz EU:C:1998:293, para 55. 27 See KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 238, where the author describes the suspension of the membership of Afghanistan in the Organization of Islamic Conference (OIC) as based on a fundamental change of circumstances – namely, the ascendency to power of a new Afghan regime imposed by the formally atheist USSR, while the OIC’s objectives included the promotion of Islamic solidarity – since that suspension could not have been justified on any material breach. 28 J Blocher, M Gulati and LR Helfer, ‘Can Greece Be Expelled from the Eurozone? Toward a Default Rule on Expulsion from International Organizations’, in F Allen et al (eds), Filling the Gap in Governance: The Case of Europe (Florence, European University Institute, 2016) 146. 29 ibid, 145. 30 ibid, 146 ff. 31 ibid, 149. 32 See, in particular, Opinion 1/91 (EEA Agreement I) EU:C:1991:490, paras 20 and 21 (contrasting EU Treaties with EEA Agreement which ‘merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the inter-governmental institutions which it sets up’). 33 Case 6/64 Flaminio Costa v ENEL EU:C:1964:66, 593. 34 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration EU:C:1963:1, 12. 35 Opinion 1/09 (Agreement on the creation of a unified patent litigation system) EU:C:2011:123, para 65; ­Opinion 2/13 (Accession of the European Union to the ECHR) EU:C:2014:2454, para 157, and Case C‑621/18 Andy Wightman et al v Secretary of State for Exiting the European Union EU:C:2018:999, para 44.

Expulsion of a Member State from the European Union: Ultimate Remedy?  327 procedures for taking cognizance of and penalizing any breach of it’.36 As such, traditional countermeasures under general international law are, in principle, precluded in the relations between the EU’s members.37 Instead, the EU’s legal system has developed autonomous mechanisms and remedies to address treaty violations. These include, in particular, the wellknown tools of direct effect and primacy, as well as the infringement procedure currently found in Articles 258–60 TFUE.38 The suspension of membership rights, foreseen in Article 7 TEU, also falls within these autonomous remedies. In the 1950s, at the time of the inception of the European Coal and Steel Community (ECSC), the precursor of the present-day EU, legal scholarship estimated that with the advent of supranational institutions and, in particular, with the presence of the ECJ, ‘the necessity for an expulsion clause disappears’.39 As autonomous EU remedies become available against treaty breaches, so the argument went, the more ‘primitive’ remedy of expulsion would become redundant. However, the argument that an expulsion clause would no longer be needed is premised on the idea that expulsion from the EU can serve no useful purpose. It is true that, while the autonomous EU remedies work, the need for expulsion as an ultimate remedy never arises. The present-day EU enjoys wide-reaching powers to induce the Member States into compliance, ranging from financial penalties in the context of infringement proceedings, fines under the budgetary discipline rules and even the possible suspension of certain membership rights in cases of serious and persistent breaches of the EU’s core values.40 Although these mechanisms diminish the distinct usefulness of expulsion, arguably they are not equivalent to permanently expelling a Member State from the EU. Without adjudging, at this point, whether the drafters of the EU Treaties have intended to preclude Member State expulsion as a last-resort remedy, it should be pointed out that the absence of an expulsion clause is the result of decades of discussions. Already the debates around the stillborn Draft Treaty on a European Political Community of 1953 made reference to the possibility of expelling a Member State if the latter’s internal systems, particularly as regards human rights protection, were to suffer fundamental changes.41 Further, in the 1985 Draft Treaty on European Union, a provision substantially identical to the current

36 Cases 90 & 91/63 Commission of the European Economic Community v Grand Duchy of Luxembourg and ­Kingdom of Belgium EU:C:1964:80, 631. 37 See ibid (‘Member States shall not take the law into their own hands’). See also Case 7/61 Commission of the European Economic Community v Italian Republic EU:C:1961:31, 329 (‘The very fact that an emergency procedure has been provided excludes any unilateral action by Member States’). 38 See Case C-38/89 Ministère Public v Guy Blanguernon EU:C:1990:11, para 7 (‘In the legal order established by the Treaty, the implementation of Community law by the Member States cannot be made subject to a condition of reciprocity. Articles 169 and 170 of the Treaty [258 and 259 TFEU] provide the appropriate remedies in cases where Member States fail to fulfill their obligations under the Treaty.’) 39 N Singh, Termination of Membership of International Organisations (London, Stevens & Sons, 1958) 17–18. 40 See, respectively, Arts 258–60 TFUE, Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area [2011] OJ L306/1, and Art 7 TEU. 41 ‘Analyse du rapport adopté le 8 Mars 1954 par la Commission pour la Communauté politique ­européenne’, sec III(D), in Assemblée ad hoc chargée d’élaborer un project de traité instituant une communauté politique e­ uropéenne, informations et documents officiels de la commission constitutionelle, Doc No 15, sec I (May 1953 Mar 1955) (‘l’exclusion d’un État membre dont le système interne aurait subi des modifications essentielles’), cited in G De Búrca, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105 American Journal of International Law 649, 663.

328  Pekka Pohjankoski suspension clause in Article 7 TEU was suggested as part of the overall institutional overhaul of the then-European Communities.42 It is noteworthy that, although the suggestion was apparently inspired by the Statute of the Council of Europe,43 which provided not only for suspension of its members, but also for their expulsion, the 1985 Draft Treaty opted not to propose an expulsion provision for the nascent Union. Expulsion was, however, explicitly on the table when the introduction of a suspension clause was being considered ahead of the 1996 Intergovernmental Conference that would eventually produce the Treaty of Amsterdam. In anticipation of the EU’s future enlargements, it was felt that, in order to ensure robust fundamental rights protection throughout the EU, there was a need to ‘insert an Article into the Treaty providing for the suspension of its rights or even the expulsion of a Member State which infringes fundamental human rights or basic democratic principles’.44 In the end, the Suspension Clause, which was inserted into the EU Treaties with the Amsterdam Treaty and modified by the Nice Treaty, was however considered sufficient. It appears that the possibility to expel a Member State was rejected on grounds of being unnecessary and because it was felt that such a provision might ‘call into question the irreversibility of membership of the Union’.45 As the irreversibility of membership has thus featured among the arguments against expulsion, it is all the more interesting to inspect the origins of the exit clause, currently enshrined in Article 50 TEU, which guarantees the right of a Member State to unilaterally decide to leave the EU. In fact, with the introduction of this provision, the treaty drafters openly rejected the irreversibility of EU membership. The idea behind the exit clause was, according to one of its drafters, to enable an orderly departure from the EU ‘after an authoritarian leader took power in a member country and the EU responded by suspending that country’s right to vote on EU decisions’.46 Under this explanation, the exit clause was in fact designed as a complement to the suspension clause. As per this understanding, the combined application of the suspension of certain membership rights pursuant to Article 7 TEU and an expected consequent exit under Article 50 TEU would constitute the designed mechanism to deal with an authoritarian regime that would persistently violate the terms of membership. As such, the gap left by the absence of an outright expulsion procedure would be filled. The travaux préparatoires of the defunct Treaty Establishing a Constitution for Europe (‘Constitutional Treaty’) corroborate this understanding. In fact, at one point during the debates of the European Convention, which was the body charged with the drafting of the

42 See Arts 4(4) and 44 of the Draft Treaty Establishing the European Union, adopted by the European Parliament on 14 February 1984 [1984] OJ C77/33. 43 See JP Jacqué, ‘The Draft Treaty, an overview’, in R Bieber, JP Jacqué and JHH Weiler, An Ever Closer Union: A critical analysis of the Draft Treaty establishing the European Union (Luxembourg, Office for Official Publications of the European Communities, 1985) 19 (referring to Greek and Turkish suspensions from Council of Europe following military coups in these countries in 1967 and 1980, respectively). 44 See Progress Report from the chairman of the reflection group on the 1996 intergovernmental conference, Madrid, 1 September 1995, SN 509/1/95 REV 1 (REFLEX 10), p 21, available at Archive of European Integration, aei.pitt.edu/34873/1/A1051.pdf, accessed 13 Oct 2018 (emphasis in original). 45 Reflection Group’s Report, Brussels, 5 Dec 1995, Second Part, ‘A. Promoting European Values, para 33, ­available at www.europarl.europa.eu/enlargement/cu/agreements/reflex4_en.htm, accessed 18 November 2018. 46 A Gray, ‘Article 50 author Lord Kerr: I didn’t have UK in mind’ (POLITICO, 28 March 2017), www.politico.eu/ article/brexit-article-50-lord-kerr-john-kerr/, accessed 29 September 2018.

Expulsion of a Member State from the European Union: Ultimate Remedy?  329 Constitutional Treaty, the proposed title of what is currently Article 50 TEU was ‘Voluntary withdrawal and expulsion from the Union’.47 As a complement to the explicitly spelled out withdrawal possibility, the proposed right to expel a Member State was designed, on the one hand, to avoid that the exit option would be employed as a tool to leverage concessions from the other Member States. This was seen as necessary to achieve ‘political balance’ in that the existence of the clause would ‘reduce the risk of political blackmailing through the means of exit threats’.48 As such, the suggested text enabled such expulsion in this context if the Member State in question had ‘abused the right of withdrawal’.49 On the other hand, the possibility of expulsion was seen as the necessary corollary to other sanctions that the EU Treaties foresaw against rogue Member States. Under the proposed expulsion clause, a serious and persistent breach of the EU’s values, found in accordance with the procedure now enshrined in Article 7 TEU, could lead to expulsion of the Member State after one year of such breach. The proponents of the clause explained that ‘a Union which every Member is free to leave must also be free to get rid of Members which violate persistently its values or which paralyse its functioning’.50 It is open to speculation why an explicit possibility to expel a rogue Member State was finally not included in the text of the Constitutional Treaty. Part of the expressed rationale for the exit clause was to guarantee an orderly departure, which expulsion, almost by definition, cannot provide. In comparison with, on the one hand, the suspension of membership rights, where a Member State remains bound by its obligations, and, on the other hand, a unilateral exit, which implies settling any outstanding obligations including any financial contributions it owes to the EU, the expulsion of a Member State would render the enforcement of its outstanding obligations difficult. A desire to emphasise the EU’s democratic character based on voluntary commitments may also have contributed to the outcome. Be that as it may, the EU Treaties, as they currently stand, do not explicitly contemplate Member State expulsion. In light of the foregoing, what should one make of the silence of the EU Treaties? Considering that the all the EU’s powers are based on conferral, one could argue that since a right to expel a Member State is not expressly provided for, such a right does not exist. Another line of interpretation would, however, suggest that the EU Treaties simply do not regulate the matter. To further assess whether the EU Treaties actively preclude Member State expulsion, the next section analyses the legality of Member State expulsion from two angles. The first approach enquires whether an expulsion power exists as an autonomous EU law remedy implicitly conferred on the EU’s institutions. The second part of the next section probes into a possible a residual power of expulsion vested in the Member States under general international law.

47 Emphasis added. See ‘Suggestion of amendment of Article I-59 by Brok, Szajer, Akcam, Van Der Linden, Lamassoure, Brejc, Demetriou, Figel, Liepina, Santer, Kelam, Kroupa, Tajani, Almeida Garrett, Altmaier, Kauppi, Lennmarker, Maij-Weggen, Rack, Vilen, on behalf of the EPP Convention Group’, european-convention.europa. eu/docs/treaty/pdf/46/global46.pdf, accessed 12 December 2018. 48 ibid. 49 ibid. 50 ibid.

330  Pekka Pohjankoski

IV.  Excursus: Can a Member State be Expelled from the EU? A.  No Implicit Right for the EU to Expel a Member State under EU Treaties The founding texts of the EU evoke a compact in perpetuum. The EU Treaties aspire to ‘an ever closer union among the peoples of Europe’ and establish the EU ‘for an unlimited period’.51 According to the ECJ, the transfer of powers from the Member States to the EU ‘carries with it a permanent limitation of their sovereign rights’.52 In light of these orientations, it would seem unlikely that a right to expel a constituent member of the EU could be derived by implication from the EU Treaties themselves. At the same time, it is clear, on the one hand, that the EU may sanction its Member States pursuant to Article 7 TEU. On the other hand, Member States may unilaterally decide to leave the EU pursuant to Article 50 TEU. The EU Treaties thus enable the EU to discipline Member States that breach its core values. Further, the nature of the EU does not, as such, mean that once a Member State has entered the EU, it can never again find itself outside of it. As these provisions present the closest nexus with the idea of expulsion, it should be examined whether they, in particular, lend themselves to their application, by analogy, to expulsion of Member States. The Suspension Clause in Article 7 TEU, which has also been labelled the ‘federal ­coercion’ provision of the EU Treaties,53 foresees a procedure enabling the EU to sanction a Member State that ‘seriously and persistently’ violates the EU’s core values54 by suspending ‘certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council’. However, as this provision refers specifically to certain rights, it seems counterintuitive to infer that it could permit a definitive expulsion of the Member State from the EU, which would result in stripping the Member State of all its rights deriving from membership.55 Some authors argue nonetheless that an expulsion power would be superfluous considering that Article 7 TEU would effectively allow the suspension of all membership rights.56 Of course, while the difference between suspending all but few of the rights of a Member State and all of its rights may, in practice, have little importance, it seems nonetheless implausible, precisely for this reason, that Article 7 TEU would allow the EU to expel a Member State.

51 See respectively, Preamble to the FEU Treaty and Arts 53 TEU and 356 TFEU. 52 Case 6/64 Flaminio Costa v ENEL EU:C:1964:66, 594 (emphasis added). 53 See S Mangiameli and G Saputelli, ‘Article 7 [The Principles of the Federal Coercion]’, in HJ Blanke and S Mangiameli (eds), The Treaty on European Union (TEU) (Berlin/Heidelberg, Springer, 2013). 54 Listed in Art 2 TEU and comprising ‘human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. 55 L Besselink, ‘The Bite, the Bark, and the Howl: Article 7 TEU and the Rule of Law Initiatives’, in A Jakab and D Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford, Oxford University Press, 2017) 130 (‘even in the case in which a Member State persistently refuses to mend its ways and restore its compliance with the fundamental values of the EU, the EU cannot force it to leave’). 56 For references to doctrine, see S Mangiameli and G Saputelli, ‘Article 7 [The Principles of the Federal C ­ oercion]’, in HJ Blanke and S Mangiameli (eds), The Treaty on European Union (TEU) (Berlin/Heidelberg, Springer, 2013) 367, fn 74.

Expulsion of a Member State from the European Union: Ultimate Remedy?  331 As for the exit clause in Article 50 TEU as a source of expulsion powers, it is surely true that a de facto expulsion could result from the combined application of Article 7 TEU and Article 50 TEU, as apparently envisaged by the drafters of the Constitutional Treaty.57 As explained above, such ‘expulsion’ could take place following the suspension of most, if not all, rights of the Member State in question, inducing the latter to exit the EU. For the present purposes, this kind of ‘forced withdrawal’ is however legally distinct from a de jure expulsion. Another type of de facto expulsion could result from not allowing a Member State to unilaterally revoke its notification of withdrawal under Article 50 TEU, but conditioning such a revocation on the approval of EU institutions or other Member States. The ECJ has considered that such a result would be incompatible with the unilateral character of the right of Member States to decide on the question of whether to stay in the EU or not.58 Nevertheless, as with the ‘forced withdrawal’ described before, this type of de facto expulsion is not comparable to the idea of remedial expulsion of a Member State as a last-resort remedy. Incidentally, although the ‘Necessary and Proper Clause’ of Article 352 TFEU could, at first sight, warrant consideration as a possible legal basis permitting the expulsion of a Member State when necessary, on closer inspection it becomes clear that this provision only operates ‘within the framework of the policies defined in the Treaties, to attain one of the objectives set out [therein]’. Since the expulsion of a Member State alters the fundamental composition of the EU itself, pursuing expulsion can hardly be considered, by any stretch of imagination, an objective ‘within the framework of the [EU’s] policies’. In any event, the use of Article 352 TFEU requires a unanimous vote in the Council. Thus, even assuming a construction by which the provision would authorise an expulsion, it could never be successfully deployed to expel a Member State against its will. That said, if no analogous application of the provisions of the EU Treaties is possible to construe an expulsion power, could it nonetheless be inferred from their silence? At the very least, the EU Treaties neither expressly prohibit, nor authorise Member State expulsion. However, one of the most fundamental precepts of the EU legal order, the principle of conferral, implies a narrow approach when it comes to construing the existence of powers of the EU that are not clearly spelled out in the EU Treaties.59 Yet, the fact that no explicit expulsion power is foreseen in the EU Treaties is not necessarily an absolute bar for its construction. Occasionally, the ECJ has construed the existence of remedies from the system of the EU Treaties, even against rather explicit treaty language, notably to guarantee the effectiveness of rights arising under EU law.60 It seems, therefore, that the enforcement

57 On ‘forced exits’ generally, see LB Sohn, ‘Exclusion or Forced Withdrawal from an International Organization’ (1964) 77 Harvard Law Review 1381, and J Blocher and M Gulati, ‘Forced Secessions’ (2017) 80 Law and Contemporary Problems 215. 58 See Case C‑621/18 Andy Wightman et al v Secretary of State for Exiting the European Union EU:C:2018:999, paras 66–68. 59 The principle of conferral, spelled out in Art 5(2) TEU, is also referred to in Arts 1(1), 3(6), 4(1) and 13(2) TEU. 60 See eg Case 294/83 Parti écologiste Les Verts v European Parliament EU:C:1986:166 (admitting actions for annulment against acts of European Parliament); Case C-72/15 The Queen, on the application of PJSC Rosneft Oil Company, formerly OJSC Rosneft Oil Company, v Her Majesty’s Treasury et al EU:C:2017:236 (admitting preliminary references to review legality of CFSP measures providing for restrictive measures against natural or legal persons); Case C-441/17 R Commission v Poland (Natura 2000 Puszcza Białowieska site) EU:C:2017:877 (admitting financial penalties in support of interim measures).

332  Pekka Pohjankoski mechanisms expressly foreseen in the EU Treaties, such as the Suspension Clause or the infringement procedure in Articles 258–60 TFEU do not necessarily preclude the existence of other measures that may derive from the system of the EU Treaties.61 Nevertheless, unlike the previous examples, the expulsion of a Member State would primarily be a decision on the structure of the EU itself. In the absence of a clear power conferred on the EU to carry out such a drastic measure, it appears difficult to justify a fundamental decision of that kind on instrumental grounds such as the effective enforcement of EU law. Moreover, nothing in the EU Treaties supports the view that a power to expel Member States was intended to be available for the EU’s institutions. On the contrary, the travaux préparatoires indicate that the absence of such a power is the result of a careful balancing exercise, with the aim to reconcile the competing interests of EU citizens and preserving peaceful conditions within the EU over combating treaty violations at whatever cost. This balancing is visible in Article 7(3) TEU, which foresees that the Council must, when suspending any membership rights, ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’. A similar logic underlies the exit procedure pursuant to Article 50 TEU, as the rights of EU citizens, in particular, are at the forefront of negotiations when the exit agreement and the future relationship between the departing state and the EU is drafted. By contrast, the consequences of an expulsion could be disproportionately damaging for the various stakeholders. The existing literature on Member State expulsion corroborates the conclusion that the EU institutions do not possess the power to expel a Member State. Among others, Eva Marlene Hausteiner considers that the introduction of an expulsion clause would be necessary to legally carry out such a measure, pointing out that the current EU Treaties prioritise ‘an organic and indissoluble notion of the union, guaranteeing both geopolitical stability and a certain degree of member state sovereignty’.62 Similarly, Carlos Closa, Dimitry ­Kochenov and Joseph Weiler seem to consider that the possibility of ‘ejecting’ a non-compliant Member State from the EU would, in any event, require the introduction of a new procedure to that end.63 Finally, Phoebus Athanassiou argues that an expulsion would not only be contrary to the EU Treaties, but also politically almost inconceivable, barely manageable legally and, as a punitive measure, illegitimate.64 Acknowledging the theoretical value of the debate, the various authors tend to agree that the Member State expulsion remains largely something of an ‘academic thought experiment’.65

61 See J Dammann, ‘Paradise Lost: Can the European Union Expel Countries from the Eurozone?’ (2016) 9 Vanderbilt Journal of Transnational Law 693, 732 (pointing out that the ECJ created state liability as a new remedy beyond those existing under EU Treaties). 62 EM Hausteiner, ‘Can Federations Expel Member States? On the Political Theory of Expulsion’ (2018) Journal of International Political Theory 16. 63 C Closa, D Kochenov and JHH Weiler, ‘Reinforcing Rule of Law oversight in the European Union’, EUI RSCAS Working Paper 25/2014, p 20 (‘To introduce such a procedure thus would potentially mean to imply that the EU, rather than defending its citizens in trouble, will spit them out together with the dysfunctional Member State.’). 64 P Athanassiou, ‘Withdrawal and Expulsion from the EU and EMU: Some Reflections’ (2009) ECB Legal Working Paper No 10, 32–35. 65 P Gragl, ‘The Silence of the Treaties: General International Law and the European Union’ (2014) 57 German Yearbook of International Law 1, 32.

Expulsion of a Member State from the European Union: Ultimate Remedy?  333

B.  Residual Collective Expulsion Power Vested in Other Member States Under General International Law As concluded above, the EU Treaties strike a careful balance between acceptable methods of coercing Member States into compliance with their obligations, while accepting that not all breaches should be sanctioned if the price to pay, especially by the citizens of the EU, would be too high. That said, if a Member State continues to disregard its obligations under the EU Treaties even after the ECJ’s findings of infringements and the suspension of membership rights pursuant to Article 7 TEU – in other words, after all the remedies under EU law have been exhausted – the EU itself could be jeopardised.66 Nevertheless, under the EU Treaties, the explicitly foreseen responses to such a situation would only appear to permit the other Member States to leave the EU. Although the explicitly foreseen mechanisms are, in practice, likely to provide sufficient coercion against a recalcitrant Member State, it seems unsatisfactory to conclude that the latter could never, as a matter of legal impossibility, be expelled. The question thus arises whether such a right of expulsion remains vested in the other Member States under general international law. From the perspective of international law, the EU legal order is perceived as a subsystem of that law.67 As such, many scholars agree that, even in the case regional integration organisations that are seen as ‘self-contained regimes’, such as the EU, general international law may be residually applicable. In the Report of the International Law Commission (ILC) on the fragmentation of international law, Professor Martti Koskenniemi suggested that ‘no regime is self-contained’ and that general international law would, in any event, provide, on the one hand, a ‘normative background’ for aspects not specifically provided by the regime itself and, on the other hand, come into operation ‘if the special regime fails to function properly’.68 Following this logic, writers like Koskenniemi, the ILC Special Rapporteur Gaetano Arangio-Ruiz, and Judge Bruno Simma of the ICJ have argued that, in the context of the EU, the Member States retain – in certain narrow circumstances – the possibility to resort to general international rules on state responsibility, namely in situations where the EU regime would fail to remedy breaches.69 66 J Dammann, ‘Paradise Lost: Can the European Union Expel Countries from the Eurozone?’ (2016) 9 ­Vanderbilt Journal of Transnational Law 693, 742 (‘However, the concern is not that states might leave the [EU]. Rather, the concern is that member states might remain within the [EU] but refuse to obey by its rules, thereby prompting the gradual collapse of the [EU]’s legal system.’) 67 See, Vattenfall AB and others v Germany, ICSID Case No ARB/12/12 (Decision on the Achmea Issue), paras 144 and 145 (‘The autonomous nature of EU law … is premised on the constitutional nature of the TEU and the TFEU, in the sense that these treaties form the basis of the organisational structure of the EU. … This … nature of the TEU and the TFEU does not exclude them from the purview of international law’). 68 ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, Finalized by M Koskenniemi, UNGA, 13 April 2006, A/CN4/L682, p 100. 69 See, respectively, ibid, at 99 (concluding that ‘a “fall-back” on general rules of State responsibility, including countermeasures’ would also apply in case of a ‘failure of the special regime of the EU’). Fourth report on State Responsibility, by Mr G Arangio-Ruiz, Special Rapporteur, Document A/CN4/444 and Add 1-3, II(1) (1992) Yearbook of the International Law Commission 36 (‘The claim that it would actually be legally impossible for the States belonging to the Community to “fall back” upon the measures afforded by general international law even in case of failure of the institutional EEC remedies does not really seem to be justified, at least from the viewpoint of general international law.’). B Simma, ‘Self-Contained Regimes’ (1985) 16 Netherlands Yearbook of International Law 111, 127 (‘But if and when the remedies provided within [the EEC] regime definitely fail to put an end to persistent violations of Community law, the situation may reach the point where further fulfillment of community

334  Pekka Pohjankoski Importantly, on this view, the general regime of countermeasures may be called forth only after exhausting the remedies under the specific regime. Although recognising the ‘highly exceptional’ nature of such derogations, which should be resorted to ‘only in extreme cases’,70 these writers essentially contend that the autonomous EU remedies preclude those under general international law only to the extent that they effectively remedy breaches.71 This logic could be equally applicable to general treaty law. It follows that, in similar cases, to the extent the remedies foreseen in the EU Treaties were to fail, Member States would be able to fall back on general international law of treaties to consider whether there has been a material breach of treaty obligations (Article 60 VCLT) or a fundamental change of circumstances (Article 62 VCLT), which could justify termination of the EU Treaties in respect of the Member State in breach of its obligations. Of course, EU law should not tolerate the use of general international law remedies in the relations between Member States whenever the EU Treaties, or other EU rules, provide for an applicable autonomous framework. Moreover, often the law of the present-day EU is so pervasive that it simply leaves no room for the residual application of international law.72 This may be true even when the EU rules do not explicitly regulate all the relevant issues.73 However, at the end of the day, when the EU Treaties do not regulate a particular issue between Member States, the latter remain, in principle, free to resort to general international law.74 For example, although no provision is expressly made for dissolving the EU, it is commonly understood that the Member States remain the ‘Masters of the Treaties’ and may, therefore, decide on the EU’s dissolution.75 On this view, the EU is ‘an association of sovereign states … which is founded on the principle of the reversible self-commitment’.76

obligations towards a defaulting member State would simply become an intolerable burden on the injured party or parties’). 70 Fourth report on State Responsibility, by Mr G Arangio-Ruiz, Special Rapporteur, Document A/CN4/444 and Add 1-3, II(1) (1992) Yearbook of the International Law Commission 40–41. 71 B Simma and D Pulkowki, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 European Journal of International Law, 483, 508–09, 519 (‘Member States only intended to relinquish their reciprocal facultés under general international law to the extent that the EC’s special procedures proved effective’.) 72 See Case C-284/16 Slowakische Republik v Achmea BV EU:C:2018:158 (holding Arts 267 and 344 TFEU preclude jurisdiction of arbitral tribunal interpreting bilateral investment treaty between two Member States). But see Vattenfall AB and others v Germany, ICSID Case No ARB/12/12 (Decision on the Achmea Issue) (dismissing jurisdictional objection based on judgment in Achmea in case concerning obligations under Energy Charter Treaty). 73 See eg Case C‑621/18 Andy Wightman et al v Secretary of State for Exiting the European Union EU:C:2018:999 (applying Art 50 TEU to conclude that notification under that provision is revocable despite fact that said provision does not expressly regulate matter). 74 See Case C-364/10 Hungary v Slovak Republic EU:C:2012:630, para 49, concerning a situation where the Hungarian President was refused entry to Slovak territory, the ECJ held that international law on diplomatic relations, and not EU law, governed the presence of the Hungarian Head of State on the territory of another state and, therefore, Slovakia was not guilty of the alleged violation of citizens’ rights to free movement under the EU Treaties. Cf the passing remark of AG Bot, in his Opinion of 6 March 2012 in the same case, EU:C:2012:124, at para 59 (‘Only a situation of persistent paralysis in diplomatic relations between two Member States, contrary to their commitment to maintain good-neighbourly relations consubstantial with their decision to join the Union, would be covered by EU law, if only because, in accordance with the last paragraph of Article 4(3) TEU, Member States must refrain from any measure that could jeopardise the attainment of the Union’s objectives.’) 75 T Hartley, ‘International Law and the Law of the European Union – A Reassessment’ (2001) 72 British ­Yearbook of International Law 1, 21. 76 See the Lisbon Treaty decision of the German Federal Constitutional Court, BVerfG (Second Senate) 30 June 2009, 2 BvE 2/08 et seq, Dr G v German Bundestag, para 233, available at www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en, last accessed 2 December 2018.

Expulsion of a Member State from the European Union: Ultimate Remedy?  335 By the same token, since the EU Treaties do not regulate expulsion, arguably the proper construction of the residual powers vested in the Member States is that the latter may rely on general international law to remedially expel a Member State, to the extent that law permits such action.77 Can the Member States then, under the substantive rules of general international law, expel a Member State from their midst? To this effect, the rules on the termination of treaties would appear to contain the most suitable remedies.78 As outlined in section II, the VCLT codifies the concepts of ‘material breach’ and ‘fundamental change of circumstances’, as they exist in customary international law.79 As regards the ground of a material breach, Article 60(2)(a) VCLT foresees that a multilateral treaty may be terminated by the other parties acting unanimously as regards the defaulting party, in case of such a breach by the latter. In case of a material breach, the other parties to the treaty establishing an international organisation may collectively exclude the defaulting party from the treaty framework – in other words, expel that party.80 In the context of the EU Treaties, material breaches, understood as breaches of ‘essential’ treaty provisions,81 could potentially encompass at least breaches of the EU’s core values, enshrined in Article 2 TEU, such as persistent and serious violations of fundamental rights or democratic structures and the rule of law. It is noteworthy that the EU’s own international agreements have sometimes specifically provided that the violation of the said values constitutes a ‘material breach’.82 However, persistent non-compliance with other essential provisions of the EU Treaties could also presumably rise to the level of a ‘material breach’. Alternatively, in the absence of a breach of particular treaty provision, a fundamental change of circumstances could justify termination of the membership of a Member State. A fundamental change of circumstances could encompass, for example, an armed attack on another Member State leading to a prolonged military conflict.83 Insofar as it was u ­ nforeseeable by

77 See, to that effect, also P Gragl, ‘The Silence of the Treaties: General International Law and the European Union’, (2014) 57 German Yearbook of International Law 1, 31–32 (noting limits of Art 7 TEU as a specific rule of EU regime preventing expulsion). B Simma and D Pulkowki, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 European Journal of International Law, 483, 518–19 (rebutting teleological arguments against falling back on general international law). 78 By contrast, the law of countermeasures appears less suitable for expelling a Member State from the Union. See KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 254 (arguing that expulsion, as opposed to suspension, cannot be reconciled with fundamental nature of countermeasures as action aiming at inducing recalcitrant state to comply with its obligations). Cf G Arangio-Ruiz, Fourth Report on State Responsibility, in (1992) II(1) Yearbook of the International Law Commission 41 (‘normally a “self-contained” regime would be established by a multilateral treaty … this implies that suspension or termination by way of countermeasure may be lawfully resorted to only under the general proviso that it does not cause prejudice to the rights of States parties other than the wrongdoing State or States.’) Emphasis added. 79 Gabčikovo-Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, (1997) ICJ Rep, p 7, para 46 (Arts 60 to 62 VCLT are ‘in many respects’ codification of customary international law). 80 See eg ME Villiger, Commentary on the Vienna Convention on the Law of Treaties (Leiden, Martinus Nijhoff, 2008) 744 (Art 60(2)(a) VCLT ‘stipulates the right of the innocent parties to react jointly to the breach, for instance, if confronted with a persistent treaty-breaker whom they wish to expel from the treaty’). 81 See Art 60(3)(b) VCLT. 82 In particular, the so-called ‘Europe Agreements’, concluded between the EC and its Member States, on one hand, and certain Central and Eastern European states, on the other, defined a ‘material breach’ essentially in this way. See KD Magliveras, Exclusion from Participation in International Organisations: The Law and Practice behind Member States’ Expulsion and Suspension of Membership (The Hague, Kluwer Law International, 1999) 234. 83 See, by analogy, Case C‑162/96 A Racke GmbH & Co v Hauptzollamt Mainz EU:C:1998:293 (holding outbreak of hostilities constitutes fundamental change of circumstances).

336  Pekka Pohjankoski the drafters of the EU Treaties, such a change of circumstances could conceivably justify expelling the Member State guilty of aggression. Thus, with the important practical caveat that the autonomous remedies of the EU legal order may, in fact, nearly always be more effective than the (threat) of expulsion, it seems that expulsion may be legally available as a last-resort measure, in the event of a fruitless exhaustion of all the other relevant EU remedies. By contrast, using the expulsion power instead of these remedies specifically foreseen under the EU Treaties would constitute a treaty violation in itself – both under EU law and under international law.

V.  Conclusion: An Ultimate Safeguard Never to be Used? Although the EU itself may not possess a power to expel a Member State, it would seem that the other Member States can collectively proceed to such expulsion as a last-resort remedy in certain circumstances. In fact, since the EU is not an indissoluble entity – to the extent that its dissolution by the Member States remains conceivable – the Member States may be considered to have retained the power to remedially expel one of their peers in the highly exceptional circumstances where all the autonomous EU law remedies would prove ineffective. In the event that these autonomous mechanisms should fail, arguably the EU’s constitutional nature does not preclude falling back on rules of general international law. That said, the availability of such expulsion depends on the view one adopts of the stage of development of the EU as a polity. General international law may only be residually applicable to the extent that the relevant EU rules do not exhaustively regulate the field in which they are to apply. If the EU were to be considered, in the future, as an entity that cannot constitutionally be dissolved by the Member States (but exclusively by the people of the EU, perhaps acting through their EU representatives), the question of expulsion would presumably be one of EU law and, by the same token, remedial expulsion by virtue of general international law would no longer be possible. Should the question of expulsion ever arise – and this could be a long time in the future, if ever – the applicability of general international law would have to be evaluated in the light of the constitutional nature of the EU at the time. As a postscript, although this contribution is not primarily concerned with the political wisdom of expelling a Member State, it should be noted that expulsion is an inherently faulty device for enforcing compliance with the EU Treaties and that its use as such might prove all but effective. In historical perspective, the expulsions of the USSR from the League of Nations, or of Cuba from the OAS, are hardly encouraging precedents. An inherent problem with expulsion as a remedy is that, when the organisation severs all its ties with the expelled member, it loses any leverage that it could otherwise have wielded. Moreover, by losing members, the relative weight of the organisation is diminished. Further practical difficulties arise from the abrupt, non-negotiated nature of expulsion, including in the EU context not taking due account of the interests of EU citizens or other third party stakeholders. More generally, it is not obvious what form the expulsion decision should take and what kind of procedures, if any, should be followed. Unregulated expulsion could result in unmitigated chaos. To be sure, the autonomous mechanisms under the EU Treaties are likely to prove vastly more useful than the blunt tool of expulsion. Under Article 7 TEU, the suspension

Expulsion of a Member State from the European Union: Ultimate Remedy?  337 of all relevant rights deriving from membership, such as voting rights and other rights of ­participation in common decision-making procedures, may be just as efficient as outright expulsion, but without the considerable negative effects that the latter carries with it. ­Moreover, the financial penalties available, in particular, under the infringement procedure under Articles 258–60 TFEU, with the possibility of their recovery from a Member State by offsetting the penalty sums against the amounts due from the EU’s budget, has often considerable coercive power (at least to the extent the Member State in question is a net beneficiary of EU funds). In any event, it is difficult to conceive of a situation where a Member State would, even after suspension of its relevant membership rights under Article 7 TEU, still continue to pose a threat which could meaningfully be remedied only through expulsion. The present contribution has focused on the applicable legal framework for conceptualising Member State expulsion from the EU. While in terms of the law the power to expel a Member State appears to continue to be vested collectively in the other Member States when all other remedies have been exhausted, it is clear that the use of such power would imply great inconvenience and provide no guarantees for accomplishing its purpose. Thus, although it may be useful to know that expulsion might be available at the end of the road, it seems that such an option would be best left unused. In fact, a firm commitment to the non-use of the ultimate remedy might, as a matter of constitutional philosophy, encourage finding less drastic solutions to the hardest of situations within the EU’s legal system. And that, surely, would be a commendable feature of any constitutional order.

338

23 The Lessons of Brexit DAVID EDWARD

I met Allan Rosas for the first time on his home ground of Åbo/Turku, where he had invited me to give a lecture. It was wintertime, and darkness fell even earlier than in Scotland. A long evening of talk with Allan and Tuula, warmed by the Finnish water of life, ensured that we were fast friends long before he came to Luxembourg. I salute him as a free spirit of the North, who has, in his own quiet way, contributed greatly to the jurisprudence of the Court and the analysis of the EU’s system of governance. The title of this essay, The Lessons of Brexit, was chosen many months ago when it was assumed that the Brexit negotiations would have come to an end, leaving only the final details to be agreed and the process of ratification to be completed. At the time of writing (early December 2018), a Withdrawal Agreement1 and Political Declaration2 have been agreed between the United Kingdom Government and the European Council, but it remains uncertain whether this deal will be accepted by the British House of Commons. The question whether the United Kingdom’s Article 50 TEU notice is revocable, and if so on what terms, is now before the Court of Justice. The hearing before 26 judges was held on 27 November 2018; the Advocate General’s Opinion supporting unilateral revocability was delivered on 4 December 2018; and the Court’s judgment is expected before the end of the year.3 Talk of a second referendum is in the air, and Brexit may not happen after all. All of which proves, as Robert Marjolin said, that stupidity plays a significant role in history.4 The challenges now facing the European Union, its Member States and its citizens are far more serious and wide-ranging than the relatively narrow issues thrown up by Brexit. Brexit is just a symptom of some of them – populism, distortion of traditional media, manipulation of social media, fantasies of an imagined past and more glorious future, weakness of traditional institutions, denigration of those with expert knowledge, and deep

1 Agreement on the withdrawal of the United Kingdom of Great Britain and Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018. 2 Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom, 22 November 2018, XT 21095/18. 3 Case C-621/18 Wightman and others v Secretary of State for Exiting the European Union EU:C:2018:999. 4 R Marjolin, Architect of European Unity, Memoirs 1911–1986 (London, Weidenfeld & Nicolson, 1989) 33. In the original French, ‘la bêtise joue un role non négligeable dans l’histoire’ in Le Travail d’une Vie (Paris, Editions Robert Laffont, 1986) 38. These Memoirs were incomplete at the time of Marjolin’s death and were published posthumously.

340  David Edward societal divisions which the present UK Government has, if anything, exacerbated. The ‘deal’ that Theresa May has brought back from Brussels – an indefinite wait in the departure lounge – does not arouse much enthusiasm amongst those who looked for a brighter future. I tried to explain the underlying historical reasons for the Brexit vote in a recent article in the Common Market Law Review.5 I ended with some thoughts inspired by a quotation from Robert Marjolin. He wrote: A treaty is just a piece of paper. One or more signatories can tear it up, admittedly, but that is equally true of any organizational formula: any legal construct is perishable. The only answer is the existence of a will to live together, the realization by nation-states that, whatever the disadvantages of the Community, they are better off in it than out of it.6

My own reflection was this: There is an urgent need to nurture the will to live together. In order to do so, we must listen more attentively and respectfully to the historic divergences and differences between the Member States and between their constituent parts. Too little attention and respect has been paid to the question why people in different parts of Europe see things differently and have different priorities. That needs to be remedied, and then we can have a respectful and constructive conversation about such different points of view.

In order to build the will to live together, two issues need to be faced: sovereignty and immigration.

I. Sovereignty A century or more ago, James (Viscount) Bryce began his essay on ‘The Nature of Sovereignty’ in this way: The frontier districts, if one may call them so, of Ethics, of Law, and of Political Science have been … infected by a number of vague or ambiguous terms which have provoked many barren discussions and caused much needless trouble to students. … No offender of this kind has given more trouble than the so-called ‘Doctrine of Sovereignty’. The controversies which it has provoked have been so numerous and so tedious that a reader – even the most patient reader – may feel alarmed at being invited to enter once again that dusty desert of abstractions through which successive generations of political philosophers have thought it necessary to lead their disciples.7

Nothing daunted, David Cameron included ‘sovereignty’ amongst the matters on which he sought reform of the European Union in his letter to the President of the European Council in November 2015: As you know, questions of sovereignty have been central to the debate about the European Union in Britain for many years. …



5 (2018)

55 Common Market Law Review, Special edition (Brexit) 251. cited above, n 4, 267 (French edition p 266). 7 J Bryce, Studies in History and Jurisprudence (Oxford, Oxford University Press, 1901), Vol 2, 503–04. 6 Memoirs,

The Lessons of Brexit  341 I want to end Britain’s obligation to work towards an ‘ever closer union’ as set out in the Treaty. It is very important to make clear that this commitment will no longer apply to the United Kingdom. I want to do this in a formal, legally-binding and irreversible way.8

The European Council, wisely avoiding the desert of abstractions, replied that: The references in the Treaties and their preambles to the process of creating an ever-closer union among the peoples of Europe do not offer a legal basis for extending the scope of any provision of the Treaties or of EU secondary legislation. They should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties.9

In spite of that reassurance, ‘regaining sovereignty’ was one of the main pillars of the Leave campaign in the Brexit referendum and is one of the many platitudes of which Theresa May’s speeches consist. ‘Taking back control’ is a variant on the theme. But what is the nature of this wild animal that has stolen our sovereignty? Many litres of academic ink have been spilled on whether the EU is a federation, a confederation or perhaps a quasi-federation – a union of states or of people or, again, of peoples. The theory of engrenage, or ratchet effect, has been developed to suggest, contrary to the evidence, that the process of European integration is an inescapable spiral of events leading to a known destination, an ‘ever-closer union of the peoples of Europe’, and inexorably to a ‘federal’ United States of Europe. In pursuit of this theory, analogies have been drawn between the institutions of the USA and those of the EU, the European Parliament being the House of Representatives, the Council the Senate, the Commission the Executive, and the ECJ the Supreme Court. This is the model to which, according to the ‘federalists’, the EU should conform.10 There are two objections (at least) to this analogy and the conclusions drawn from it. The first is a historical and cultural objection. As Marjolin said: What could there possibly be in common between the British establishments of the Atlantic coast in 1780 or thereabouts, which were less than a century and a half old, which shared the same language, the same law and, essentially, the same institutions, which had never fought one another, and the old States of Europe – France, Britain, Germany, Italy – some of which, admittedly, had unified in the 19th century, but which had national traditions going back to the Middle Ages? Because the term ‘United States of Europe’ creates illusions in minds that are ignorant of history, I have always refused to use it.11

The second, and perhaps even more powerful objection to the EU/US parallel is to be found in Notes written in 1834, a few months before his death, by the ‘Father of the Constitution’, 8 Letter to Donald Tusk, President of the European Council, 10 November 2015, headed ‘A new settlement for the United Kingdom in a reformed European Union’, at www.gov.uk/government/publications/ eu-reform-pms-letter-to-president-of-the-european-council-donald-tusk. 9 Draft Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union, 18–19 February 2016 (2016/C 69 I/01), Section C, para 1, second para. 10 See, for example, remarks by Jacques Delors on French television (23 January 1990), quoted in C Grant, Delors – Inside the House that Jacques Built (London, Nicholas Brearley, 1994) 135: ‘My objective is that before the end of the millennium Europe should have a true federation. The Commission should become a political executive which can define essential common interests … responsible before the European Parliament and before the nation-states represented how you will, by the European Council or by a second chamber of national parliaments.’ 11 Memoirs, cited above, n 4, 267–68; in the French edition, pp 266–67.

342  David Edward President James Madison. He was concerned about the doctrine of ‘nullification’ asserted by South Carolina to the effect ‘that a single State has a constitutional right to arrest [stop] the execution of a law of the U.S. within its [territorial] limits’. (A similar theory has been advanced in our own times by the German Constitutional Court.12) Madison said: The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and consequently that no portion of it can belong to the US.

Madison’s answer was that sovereignty ‘resides not in a single state but in the people of each of the several states, uniting with those of the others in the express and solemn compact which forms the Constitution’. As to the nature of that ‘solemn compact’, he went on: [H]owever it may be obscured by the ingenuity and technicalities of controversial commentators, its true character will be sustained by an appeal to the law and the testimony of the fundamental charter. The more the political system of the U.S. is fairly examined, the more necessary it will be found, to abandon the abstract and technical modes of expounding and designating its character; and to view it as laid down in the charter which constitutes it, as a system, hitherto without a model; as neither a simple or a consolidated Government nor a Government altogether confederate; and therefore not to be explained so as to make it either, but to be explained and designated, according to the actual division and distribution of political power on the face of the instrument.13

In short, we need to concentrate, not on parallels or models put forward by controversial commentators, but on the words of the fundamental charter – in our case the Treaties. That will show what is ‘the actual division and distribution of political power’. The outcome of the Brexit negotiations has shown (if it needed to be shown) that the EU is an organisation of extraordinary complexity. The Withdrawal Agreement (nearly 600 pages of dense legal text) and the Political Declaration (a 35-page wish list for the future) illustrate but do not exhaust the range and variety of topics that are embraced within the scope of the Treaties. As Allan Rosas and Lorna Armati have said, the EU is an elephant that cannot be defined, sometimes bringing to mind a disorderly gaggle of geese and at times a chameleon more than an elephant.14 The EU defies definition because it is an experiment in transnational government ­without precedent – ‘a system hitherto without a model’. At the very beginning, Robert Schuman warned that ‘Europe will not be conjured up at a stroke, or by some master plan. It will be attained through concrete achievements that lead in practice to a community of interest.’15 Attempts to define what the EU is, or ought to become, are not only pointless but can lead to serious misunderstanding – notably about the extent to which the EU ‘intends’ to ­undermine national sovereignty. 12 BVerfG, 2BvE 2/08 vom 30.6.2009. Abstaz-Nr (1-421), §241: Sowohl die Ultra-vires- also auch die Idenztitätskontrolle können dazu führen, dass Gemeinschfts- oder künftig Unionsrecht in Deutschland für unanwedbar erklärt wird. (‘Ultra vires review as well as identity review can result in Community law or future Union law being declared inapplicable in Germany’). 13 James Madison, Notes on Nullification, December 1834 (completing the abbreviations in the original), in G Hunt (ed), 9 The Writings of James Madison. (New York and London, GP Putnam’s Sons, 1900–10) 599–600. The notes were written almost entirely in Madison’s own hand and revised by him with the aid of Mrs Madison and his brother-in-law, John C Payne. 14 A Rosas and L Armati, EU Constitutional Law, (Oxford, Hart Publishing, 2018) ch 2. 15 Schuman Declaration (my translation from the original French).

The Lessons of Brexit  343 Vocabulary has consequences, not least in the way that people speak about the EU. It is true that, from a legal point of view, the EU has ‘personality’. But it does not, like a human person, have its own ‘intentions’ abstracted from the institutions that make it work (or fail to do so). Nor is there any such animal as ‘Brussels’, with a mind and intentions of its own. On the contrary, Brussels is more like a zoo with many animals – perhaps too many, some of them in gilded cages – contending for precedence above the others. For politicians and diplomats from countries with a tidy constitutional structure it is bewildering. Nevertheless, the Brexit negotiations have shown that the institutional mechanisms laid down in the Treaties can work very efficiently. Article 50 TEU has been criticised as lacking in detail, but that has proved to be its strength. In its Statement following the Referendum, the European Council made it clear that, in accordance with the procedure laid down in Article 50(2) TEU, negotiations with the UK would not begin until the UK’s Article 50 notice had been lodged.16 Much to the disappointment of the British, this refusal to negotiate was adhered to, both by the institutions and by the 27 Member States. Meanwhile, the Council in cooperation with the Commission concentrated on other matters, enabling the European Council to adopt the ‘Bratislava Roadmap’ for a work programme and priorities.17 One month after the UK’s Article 50 notice had been served on 29 March 2017, the European Council, after discussion with representatives of the European Parliament, adopted the guidelines for negotiation proposed by the Commission.18 The Commission has followed these guidelines and the outcome of the negotiations with the UK has been accepted by the European Council with the concurrence of the Presidents of the Commission and the Parliament. The history of events since the British referendum in June 2016 has demonstrated that compliance with the terms of the EU Treaties, that is, respecting the roles of each of the institutions, does not involve any derogation from the sovereignty of the 27 Member States. To the contrary, it has demonstrated the efficiency of shared sovereignty operating in accordance with ‘the actual division and distribution of political power on the face of the instrument’. This should be the main lesson of Brexit and might with profit be kept in view when it comes to the appointment of the next President of the Commission in 2019. On the last occasion, the European Parliament pre-empted the procedure laid down in Article 17(7) TEU through its tactic of the Spitzenkandidat – the theory (or fiction) being that, by electing a majority of Parliamentarians from one particular party, the European demos is deemed to have voted to elect that party’s pre-selected candidate as President of the Commission. It is possible that, had the procedure laid down in Article 17(7) TEU been followed, the same person would have become President of the Commission. That cannot be known. What cannot be denied is that compliance with the terms of the EU Treaties is likely to confer a legitimacy that cannot be provided by any abstract theory as to the presumed intentions of a European demos (whatever that may be).

16 Statement following the Informal meeting at 27, Brussels, 29 June 2017: www.consilium.europa.eu/en/press/ press-releases/2016/06/29/27ms-informal-meeting-statement/. 17 The Bratislava Declaration, 16 September 2016: www.consilium.europa.eu/en/press/press-releases/2016/09/16/ bratislava-declaration-and-roadmap/. 18 Guidelines following the United Kingdom’s notification under article 50 TEU: 29 April 2017, EUCO XT 20004/17, www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf.

344  David Edward

II. Immigration One of the most persistent confusions in the Brexit debate has been the mixing up of different issues regarding the movement of people into and within the frontiers of the European Union. It has been assumed, in Britain at least, that ‘free movement of persons’ means that citizens of the Member States are free to come and go across the internal frontiers of the Union and that, in consequence, nationals of third states will also be free to come and go unless there are fully effective border controls, which must in turn limit the free movement of EU citizens. This vicious circle is made all the worse by the movement of refugees, asylum-seekers and economic migrants into the Union, especially through Greece, Italy and, to a lesser extent, Spain. The issue of free movement remains toxic in the UK. Both of the main political parties, Conservative and Labour, or at least their leaders, seem to be attached to the idea that the capacity to control immigration is one of the benefits, if not the chief benefit, of leaving the EU. This was the principal concern of the electorate in some parts of the country and might prove decisive if there were a second referendum. It is therefore imperative that there be clarity as to what the free movement provisions of the Treaties require. In the original EEC Treaty, ‘free movement of goods’ and, separately, ‘free movement of persons, services and capital’ were stated to be the ‘Foundations of the Community’.19 They were brought together as a single comprehensive package by the Single European Act, which added the following ‘Principle’: ‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’20 Much of the discussion during the Brexit negotiations, in Britain at least, has been conducted on the assumption that freedom of movement of goods (‘trade’) is severable from the other freedoms. This is economic and practical nonsense. Goods do not float across frontiers on magic carpets. They are transported, usually on lorries driven by ‘persons’, whose employers are providing ‘services’ in the form of transport. The sale and purchase of the goods will often have been arranged by salesmen or agents crossing frontiers (‘persons’ or ‘services’) or operating from a local branch office or subsidiary (‘establishment’). Nowadays, where the goods consist of complex machinery or components, they will be accompanied to their destination by technicians or fitters (‘persons’ providing ‘services’). The goods must be paid for, and this is straightforward because restrictions on payments between Member States are prohibited (‘capital and payments’). The internal or single market works because it is a comprehensive package, looking at modern economic life as a whole, eliminating all the restrictions that can gum up the free flow of products, skills and ideas. It is not ‘intransigence’ to insist that the package is indivisible and not open to ‘cherry-picking’. Indiscriminate restriction of movement of persons across internal frontiers while purporting to maintain free movement of goods is economically illiterate. But the right of free movement of persons is not, and never was, unlimited. The nature and extent of the right are delineated by the terms of the Treaty and secondary legislation. 19 EEC Treaty, Pt Two, Titles I and III, Agriculture (Title II) being an aspect of free movement of goods, and Transport (Title IV) being an aspect of free movement of services. 20 Art 8a, second para, added by Art 13 of the Single European Act, now Art 26 TFEU, second para.

The Lessons of Brexit  345 It is true that, as Advocate General Trabucchi observed, ‘the migrant worker is not regarded by Community law – nor is he by the internal legal systems – as a mere source of labour but is viewed as a human being’.21 It is also true that the concept of European citizenship has widened the horizons of ordinary people – not just the ‘élite’ – all over the continent. But the Member States can refuse entry, or expel, on grounds of public policy (ordre public), public security and public health, and those who are not economically active may be required to produce evidence of medical insurance and financial self-sufficiency. The UK’s concerns were outlined in David Cameron’s letter of 10 November 2015. Specifically, he wanted to ‘to reduce the current very high level of population flows from within the EU into the UK’ and to ‘crack down on the abuse of free movement’.22 The European Council’s Draft Decision of 18–19 February 2016 restated the correct interpretation of the Treaty and offered a range of further measures to deal with the problems raised by the UK.23 It has been suggested that this did not go far enough – ‘too little too late’.24 To which, it can reasonably be answered that it would not have been possible to go further while keeping within the limits of the Treaty, the secondary legislation and the Court’s case law. Anyway, it is highly doubtful whether any further concession in early 2016 would have been sufficient to turn the tide of misrepresentation and palpable falsehoods that have been poured into the ears of the British electorate. The position now is that, largely in consequence of the Brexit vote and the ‘hostile environment’ engendered by Home Office policy and sections of the media, the inflow to the UK of EU nationals in the year to June 2018 dropped to its lowest level since 2012. By contrast, the inflow from third countries continued to increase, suggesting that the problem lies not with the EU, but with the ineffectiveness of the UK’s own immigration system in controlling the inflow from third countries.25 In some parts of the UK, notably Scotland, the consequences of the outflow of EU nationals for public services and, more generally, for the demographics of the country are serious.26 If there is a lesson to be drawn from Brexit, it is that hostile public attitudes towards other EU citizens, encouraged by the media and statements of public policy, can have a profoundly negative effect on the willingness of those citizens to come to, or stay in the UK, while not discouraging the inflow from third countries. The separate inflow of migrants to Greece, Italy and Spain presents quite different problems for the EU to which the UK – lamentably – has offered little or nothing by way of solution. Those of us who value membership of the EU hope that the lesson of Brexit will have been learned here at home. After 45 years of membership – more than half a lifetime – our national life and institutions are so intertwined with those of the European nations

21 Opinion of AG Trabucchi in Case 7/75 Mr & Mrs F v Belgian State EU:C:1975:75. 22 Cited at n 9 above. 23 Cited at n 10 above. 24 C Barnard and S Fraser Butlin, ‘Managed Migration’ in (2018) 55 CMLRev 203 at 220. 25 ‘Migration Statistics Quarterly Report’ (Office for National Statistics, 2018), www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/ november2018, accessed 31 December 2018 (figures are given for the years from June 2008 to June 2018). 26 ‘Scotland’s Place in Europe: an Assessment of the UK Government’s Proposed Future Relationship with the EU’, www.gov.scot/publications/scotlands-place-europe-assessment-uk-governments-proposed-future-relationshipeu/, published 27 November 2018.

346  David Edward (­ including and especially Ireland) that it is fatuous to dream of sovereignty regained on the sunlit uplands of Atlantis, immune from the intrusion of alien settlers. Our problems are common problems and, as Jean Monnet wrote a century ago: It is important to make both Governments and peoples know each other better, so that they come to see the problems that face them, not from the viewpoint of their own interests, but in the light of the general interest. Without a doubt, the selfishness of men and of nations is most often caused by inadequate understanding of the problem in hand, each tending to see only that aspect of it which affects his immediate interests. But if each interested party in these circumstances, instead of facing another party with opposing interests, is presented with the problem as a whole, there can be no doubt that all parties’ points of view will be modified. Together, they will reach a solution that is fair. They will do so all the more readily if they know that the debate is taking place under the eyes of other Governments or peoples who will pass judgment on what they do.27

27 J Monnet, Memoirs, transl. R Maine, (London, Collins, 1978) 83 (in the original French edition, Mémoires (Paris, Librairie Arthème Fayard, 1976) 97).

24 From Rome to Lisbon and from Lisbon to Brexit AINDRIAS Ó CAOIMH

In choosing this chapter, I am influenced by a phone call I received from the late Judge Pierre Pescatore on the occasion of the rejection in a referendum by the Irish voters of the Lisbon Treaty in June, 2008. He indicated his hope that this would result in a change to the Treaty, and in particular to Article 50 TEU thereof, to which he was adamantly opposed. He subsequently wrote to the press1 to express his concerns about the Lisbon Treaty which included Article 50 TEU which he saw as facilitating Member States engaging in ‘political blackmail’ and which he saw as initiating the break-up of the European Union. The 10 years since that phone call have enabled me to understand his concerns, in particular in the light of the United Kingdom referendum in June, 2016 resulting in its decision to leave the European Union and the difficulties experienced in the subsequent negotiations between the UK and the EU under the terms of Article 50 TEU. I do not propose to address the particularities of the Brexit decision and the negotiations conducted under Article 50 TEU but simply to refer to some aspects of Brexit insofar as they assist in a general understanding of Article 50 TEU itself.2 In this chapter, I propose treating the genesis of this treaty provision and assessing the impact that it has had or may have in the future on the nature of membership of the European Union.

I. Genesis Article 50 TEU reproduces Article I-59 of what was the proposed Constitution for Europe. This article, which was discussed by the Constitutional Convention, inserts into the Treaties for the first time the right of a Member State to secede. It represents a fundamental change from the language of the Treaty establishing the European Economic Community in 1957

1 Luxemburger Wort, Letters to the Editor, 30 August 2008. 2 At the time of writing this contribution uncertainty exists as to whether the withdrawal agreement signed by the EU and the UK in November 2018 will be ratified by the UK.

348  Aindrias Ó Caoimh and all successive treaties governing the European Communities and ‘marks a stark contrast with the pre-Lisbon situation’.3 Article 50 TEU reads: 1. 2.

3.

4.

5.

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

It must be realised that the introduction of Article 50 TEU is in stark contrast to the provision of the EEC Treaty which provided for a treaty of unlimited duration and which is now contained in Article 51 TEU, which states: ‘This Treaty is concluded for an unlimited period’, in contrast to the European Coal and Steel Treaty, 1952 which was expressly concluded for a limited period of 50 years. In his letter to the Luxemburger Wort, Judge Pescatore indicated that the original provision in the EEC Treaty of 1957 was obtained by the Luxembourg government in the negotiations leading to the treaty and was hailed by their Foreign Affairs Minister at the time, Joseph Bech as an ‘essential guarantee of the Member States’ contractual rights’. It has been stated that ‘a right of unilateral withdrawal would be at odds with some of the basic assumptions underlying the Community legal order and the idea of a lasting union among the peoples of Europe’.4 With regard to this latter observation, reference must be made to the preamble to the EEC Treaty which referred to the founding Member States being ‘Determined to lay the foundations of an ever closer union among the peoples of Europe’, which evolved in the declaration on European Union (1983) to ‘confirm their commitment to progress towards an ever closer union among the peoples and the Member States of the European

3 C Closa ‘Interpreting Article 50: Exit, Voice and … What about Loyalty?’ in C Closa (ed) Secession from a Member State and Withdrawal from the European Union Troubled Membership (Cambridge, Cambridge University Press, 2017) 196. 4 P Athanassiou ‘Withdrawal and expulsion from the EU and EMU: Some reflections’ (2009) European Central Bank Legal Working Papers No 10, 18.

From Rome to Lisbon and from Lisbon to Brexit  349 ­ ommunity’ and further in the Maastricht Treaty to ‘RESOLVED to continue the process of C creating an ever closer union among the peoples of Europe …’, which language was repeated in the preamble to the TEU in the Lisbon Treaty and in Article 1 thereof to indicate ‘This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.’ THe Preamble to the TFEU reads ‘DETERMINED to lay the foundations of an ever closer union among the peoples of Europe …’. What consequences flow from this fundamental change? It is first necessary to have regard to the influence played by the provisions of the founding treaties. When one looks at the case law of the Court of Justice (ECJ or Court), one can see the influence of the permanent nature of the commitment entered into by Member States in their accession to the founding treaties. This is most evident in the celebrated decision in Case 26/62 Van Gend en Loos in which the Court examined the objective of the EEC Treaty and indicated that it was more than an agreement which merely created mutual obligations between the contracting states. The Court was influenced by the preamble to the Treaty, which refers not only to governments but to peoples. The Court concluded that the European Community constituted a new legal order ‘for the benefit of which states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.’ The Court added that Community law had imposed not only obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. While the case of Van Gend en Loos5 referred to the rights of the Member States and highlighted the rights of individuals, the subsequent case law of the Court of Justice emphasises the obligations of Member States. This is apparent from, for example, Costa v ENEL,6 where the Court of Justice indicated that the EEC treaty had created its own legal system. The Court in Van Gend en Loos referred to the unlimited duration of the Community: By creating a Community of unlimited duration, having its own institutions, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.

The Court then addressed, in effect, the issue of supremacy when it stated: The integration into the laws of each Member State of provisions which derive from the Community and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on the basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system …

The Court added that ‘The law stemming from the Treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal



5 Case 6 Case

26/62 Van Gend en Loos v Administratie der Belastingen EU:C:1963:1. 6/64 Flaminio Costa v ENEL EU:C:1964:66.

350  Aindrias Ó Caoimh ­ rovisions, however framed, without being deprived of its character as Community law and p without the legal basis of the Community itself being called into question.’ The Court then addressed the permanent nature of the Community when it stated: The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights … (emphasis added).

Since the decision of the Court in this case, delivered in February 1963, one can observe that the reference to ‘limited fields’ in which states have limited their sovereign rights, is no longer valid as the European Union has wide competence resulting from successive amendments of the founding treaties, including the EEC Treaty, most recently in the context of the coming into force of the Lisbon Treaty. This change is reflected in the case law of the Court of Justice which has referred to a limitation of sovereign rights ‘in ever wider fields’.7 These amendments were achieved most notably by: –– The Single European Act of 1986 which brought into being new competences such as social policy and the environment and focused on the completion of the single market, by introducing qualified majority voting within the Council. –– The Maastricht Treaty of 1992, establishing the concept of the European Union alongside that of the European Communities via a new Treaty on European Union (TEU) as well as establishing the second pillar of the EU on common foreign and security policy and a third pillar on cooperation in the fields of justice and home affairs and, the concept of citizenship of the Union and the framework for a single currency. This treaty extended the objectives of the Community. –– The Treaty of Amsterdam of 1997, which again extended the objectives of the Community and integrated the Schengen regime into the institutional framework of the Union. –– The Treaty of Nice (2001), which was essentially directed at institutional reform and foresaw the accession of new Member States to the Community. –– The Treaty of Lisbon which abolished the pillar structure and involved certain institutional reform including introducing the President of the Council as well as the High Representative.8 –– A reform of economic and monetary policy with the amendment to Article 136 TFEU in 2012 reinforcing the Stability and Growth Pact by providing for a European Stability Mechanism.9 In Case 7/71 Commission v France,10 a case which concerned a provision of the Euratom Treaty, the Court, on 14 December 1971, used similar language to that in Costa v ENEL but

7 See Opinion 1/91, EU:C:1991:490, Opinion 1/09, EU:C:2011:123, Case C-28/12 Commission v Council EU:C:2015:282 and Opinion 2/13, EU:C:2014:2454. 8 For a short summary of these various treaty changes see eg A Rosas and L Armati, EU Constitutional Law (Oxford, Hart Publishing, 2018) ch 2. 9 This was achieved by European Council Decision 2011/199 which was adopted in 2011, which amended Art 136 TFEU, effective January 2013. This involved the simplified revision procedure introduced by the Lisbon Treaty and enshrined in Art 48(6) TEU. 10 Case 7/71 Commission v France EU:C:1971:121.

From Rome to Lisbon and from Lisbon to Brexit  351 added an important statement which is pertinent to the interpretation of Article 50 TEU when it said: 18 It cannot be presumed that provisions of the Treaty have lapsed. 19 The Member States agreed to establish a Community of unlimited duration, having permanent institutions invested with real powers, stemming from a limitation of authority or a transfer of powers from the States to that Community. 20 Powers thus conferred could not, therefore, be withdrawn from the Community, nor could the objectives with which such powers are concerned be restored to the field of authority of the Member States alone, except by virtue of an express provision of the Treaty.

These interpretations of the Treaties appear to confirm the view that the founding treaties, insofar as they did not make any express provision for a Member State to withdraw from membership of the European Communities, did not entitle a Member State to do so under European law.11

II. Impact The Union today of 28 Member States and a population in excess of 500 million contrasts with the initial European Communities of six Member States. This means that the integration of a Member State within the EU is very far-reaching compared to the integration into a Community of 6 Member States. This has resulted in changes to the decision-making processes, especially with regard to majority voting within the Council, co-decision with the European Parliament and increased power of initiative of the European Parliament. In addition to the institutions of the EU, which now include the European Central Bank and the Court of Auditors, the Bodies of the Union include the Economic and Social Committee, the Committee of the Regions and the Political and Security Committee. Other committees in which Member States partake include such as the Economic and Financial Committee, the Social Protection Committee and the Employment Committee. In addition, there are 400 advisory committees in which the Member States take part.12 In addition, there are in excess of 30 decentralised agencies in which the Member States take part. The most important of these include the European Environment Agency, the European Medicines Agency, the European Food Safety Authority, the European Maritime Safety Agency, the European Aviation Safety Agency, the European Chemicals Agency, the European Defence Agency, Europol, Eurojust, the European Banking Authority and Frontex. The withdrawal of a Member State poses potential difficulties for these bodies, committees, and agencies. The future relationship of a withdrawing Member State could include some continued involvement with such bodies, committees and agencies but may involve the relocation of decentralised agencies disrupting their working and the lives of staff and their families working at their locations. The increase in the competence of the EU resulting from the successive amendments to the founding treaties has resulted in a significant body of the law of the Member States being 11 See JHH Weiler, ‘Alternatives to Withdrawal from an International Organization: The Case of the EEC’ (1985) 20 Israeli Law Review 282 for a similar viewpoint. 12 See K Lenaerts and P Van Nuffel, European Union Law (London, Sweet and Maxwell, 2011) 552.

352  Aindrias Ó Caoimh of EU origin. This includes, for example, the fields of the Environment, and Visas, Asylum and Immigration, to mention but two. In addition to the increased competences of the EU one has to bear in mind the fact that even with regard to areas of Member State competences, the exercise of these competences is limited, insofar as they may not be exercised in a manner that compromises the workings of the internal market. While academic discussion in relation to the existence of a right to unilateral withdrawal prior to the coming into force of Article 50 TEU has been divided and has suggested the possibility of such13 based on a reservation of the Federal Republic of Germany placed in the minutes of the EEC and Euratom Treaty negotiations whereby the Government of the Federal Republic maintained its understanding that in the case of German reunification, ‘a re-examination of the treaties on the Common Market and Euratom will take place’, it is submitted that this reservation cannot be construed as an acceptance of a right to withdraw, but only as an understanding to re-examine the treaties in the light of the eventuality of German reunification. It appears that under normal circumstances under the provisions of international law and in particular the provisions of the Vienna Convention of the Law of Treaties, unilateral withdrawal was not possible and the only possibility was by agreement with other Member States.14 The Convention established by the European Council meeting at Laeken led to the provision providing for withdrawal from the EU which was inserted in the first drafts of the Praesidium and the Constitutional Treaty.15 The Praesidium explained its position as intended to ‘clarify’ the situation where conflicting views existed as to the entitlement to voluntary withdrawal. It considered that the Constitution had to contain a provision on voluntary withdrawal from the EU. It indicated its view that the inclusion of such a provision ‘clarifies the situation and allows the introduction of a procedure for negotiating and concluding an agreement between the EU and the Member State concerned setting the arrangements for withdrawal and the framework for future relations’. The Praesidium then added that a provision to such effect ‘is an important political signal to anyone inclined to argue that the EU is a rigid entity which it is impossible to leave.’ It may be said that far from clarifying the situation, the proposal was one introducing a fundamental change to the status quo and that a constitution is not a place for political signals, especially when the proposal was introduced without apparently appreciating its potential negative effects. It has been stated that ‘the exit clause would appear to represent a notable departure, rather than a codification of international or Community law on the right of Member States to withdraw from their treaty commitments’ and that ‘this does not fit comfortably with the fundamentally integrationist rationale of the treaties, with the sui generis nature of the Community legal order and, not least, with Article 48 TEU and with the specific procedure for amending the treaties that this provides …’16

13 See HJ Blanke and S Mangiameli (eds), The Treaty on European Union (TEU): A Commentary (Berlin, Springer, 2013) referring to JA Hill, ‘The European Economic Community: The Right of Member States Withdrawal (1982) 12 Georgia Journal of International and Comparative Law 335. 14 See Blanke and Mangiameli TEU n 13 in its examination of Art 50 TEU at section 2.4. 15 ibid at section 3. 16 Athanassiou, ‘Withdrawal’ n 4, at 25

From Rome to Lisbon and from Lisbon to Brexit  353 It has been correctly indicated that the provision as it was introduced to the Convention, seemed to be based on the controversial assumption that the right to voluntary/unilateral withdrawal exists independently of the Treaties.17 The proposal was controversial and elicited opposition before the Convention.18 It was also opposed by the European Commission in 2004 as part of the draft Constitution, as permitting a Member State to blackmail others by threatening to leave.19 Closa also indicates that ‘withdrawal provisions undeniably facilitate strategic bargaining behaviour’ and further adds that the right of withdrawal ‘may be used as a threat to prevent disadvantageous decisions’20 or as ‘a threat to obtain compensation for accepting decisions which are necessary to the integration process.’21 The withdrawal of a Member State from the EU carries potentially severe consequences for the Member State concerned and for the other Member States, for the Institutions and bodies, committees and agencies of the EU, depending in particular on the negotiated future relationship of the seceding Member State and the EU. Whatever the impact on the Member States, it is the impact on natural and legal persons that is liable to be most particularly felt. In addition to the consequences for the Member States, the withdrawal also has negative consequences for the EFTA Member States.22 This impact results in particular from the fact that the EEA-EFTA states are party to the Single Market and the withdrawal of a Member State, for example the UK, from the Single Market will impact adversely on the citizens and businesses and others from these three EFTA states in a similar manner to the way that those of the remaining Member States will be impacted. The ECJ has recognised that ‘any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all EU citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States’.23 Eeckhout and Frantziou indicate in relation to the UK’s secession that ‘there is no denying that the withdrawal of one of its largest Member States is a moment of crisis for the Union and a difficult test for the effectiveness of its institutions’.24 In relation to rights derived from EU law they state: This system of rights is not a theoretical construct. It is part and parcel of the daily lives of millions of people, both in the UK and elsewhere in the EU. Indeed, the rights that EU law generates are 17 See Blanke and Mangiameli, TEU n 13, referring to J Bruha and C Nowak in ‘Recht auf Austritt aus der Europäischen Union? Anmerkungen zu Artikel 1-59 des Entwurfs eines Vertrages über eine Verfassung für Europa’ 42 (1) Archiv des Völkerrechts 1–25. Blanke and Mangiameli indicate a range of criticisms that were expressed within the Convention to the proposal. 18 See Blanke and Mangiameli, TEU n 13 in its examination of Art 50 TEU, and P Eeckhout and E Frantziou, ‘Brexit and Article 50 TEU: A Constitutionalist Reading’ (2017) 54 CMLRev 694 at 704–05. See generally C Closa (ed) Secession from a Member State and Withdrawal from the European Union Troubled Membership (Cambridge, Cambridge University Press, 2017). 19 See C Closa, ‘Interpreting Article 50: Exit, Voice and … What about Loyalty?’ in C Closa (ed) Secession from a Member State and Withdrawal from the European Union Troubled Membership (Cambridge, Cambridge University Press, 2017) 202. 20 ibid at 202. 21 ibid at 201. 22 See C Hillion, ‘Brexit means Br(EEA)xit: The UK withdrawal from the EU and its implications for the EEA’ (2018) 55 CMLRev 135. 23 Case C-621/18 Wightman and others EU:C:2018:999, para 64. 24 Eeckhout and Frantziou, ‘Brexit and Article 50 TEU’ n 18, 696.

354  Aindrias Ó Caoimh beyond enumeration, or even classification. They are scattered throughout all EU policies and thousands of pieces of legislation. What follows is definitely incomplete and strictly illustrative. There are rights to free trade, in goods and services; rights to free movement of capital and free establishment; rights to free movement of persons, accompanied by rights to work, to reside, not to be discriminated against on grounds of nationality. There are broader rights to equality; political rights; employment and social rights; consumer rights; environmental rights; rights to agricultural subsidies; rights to have foreign judgments enforced; rights of immigration and family reunification; rights to privacy and data protection. Overarching all of these rights is the EU Charter of Fundamental Rights, which proclaims a number of them to be fundamental and ensures their respect within the scope of application of EU law.25

The authors recognise that rights of EU citizenship will inevitably be lost, while other rights are contingent upon negotiation of the future relationship.26 They add: Moreover, in light of the uncertainty inherent in the political nature of the withdrawal process, which is one of negotiation, many EU law rights are rendered vulnerable. This is the case for those rights which cannot be maintained in the absence of their recognition by all Member States, for example rights of free movement, including those of UK citizens to work and reside in other Member States. What could also be lost is a certain level of entrenchment of EU law rights, ­particularly but not exclusively those which flow from the EU Treaties and the Charter.27

While Eeckhout and Frantziou argue that there exists a duty for the EU to respect the UK’s constitutional requirements, and to protect in any eventual agreement acquired rights for EU citizens in the UK and for UK citizens in the EU, it must be recognised, assuming this to be a correct statement of law, that Article 50 TEU itself cannot ensure a negotiated withdrawal by a seceding Member State or a satisfactory negotiated future relationship with that state. This is recognised by the authors, who state further that a ‘no-deal’ withdrawal ‘clearly offends all that EU constitutional law holds dear, in terms of rights protection, the rule of law, and the duty of cooperation’. Thus, while it may not impose an obligation on the withdrawing Member State to negotiate, Article 50 TEU does, as Hillion has put it, impose a ‘best endeavours obligation’ on the EU to negotiate and reach an agreement.28 The counterpart to the unilateral right of withdrawal must indeed be to read Article 50 TEU as embodying an exceptionally strong preference for a negotiated, orderly, and well-transitioned withdrawal, over the ‘no-deal’ outcome, at least on the part of the EU. This preference for a negotiated, orderly and well-transitioned withdrawal over a ‘no-deal’ outcome, highlights once again the risks inherent in Article 50 TEU itself and the need on the part of the EU in particular to act in a manner which will be less injurious to the EU and its citizens.

25 ibid, 700–01. 26 See also D Kochenov, ‘EU Citizenship and Withdrawals from Membership of the European Union: How ­Inevitable is the Radical Downgrading of Rights’ in Closa (ed), Secession from a Member State and Withdrawal from the European Union Troubled Membership (Cambridge, Cambridge University Press, 2017). 27 Eeckhout and Frantziou, ‘Brexit and Article 50 TEU’ n 18, 701. 28 C Hillion, ‘Leaving the European Union, the Union way: A legal analysis of Article 50’ (2016) 8 Swedish ­Institute for European Policy Studies: European Policy Analysis 6.

From Rome to Lisbon and from Lisbon to Brexit  355

III. Future The substantive right to withdraw, which is conferred by Article 50 TEU, is largely ­unconditional in character, the only conditions being procedural in nature. This situation is one which has given rise to a fear of negative consequences.29 It has been suggested that this could give rise to an increased use of the threat of withdrawal to extract concessions in intergovernmental negotiations.30 While Article 50 TEU itself envisages the negotiation on the one hand of a withdrawal agreement, to be approved by the withdrawing Member State in accordance with its constitutional requirements and, on the other hand, by the Council acting by a qualified majority and the consent of the European Parliament, the negotiation of the future relationship with the EU is likely to require agreement by all the Member States as it will in all probability take place after the Member State has withdrawn from the EU and mixity will be required. In theory, the future relationship could be agreed before the Member State has withdrawn and could be limited in nature. However, it is most probable that the future relationship will require agreement under the provisions of Article 217 TFEU, rather than the limited scope of a free trade agreement under Article 207 TFEU and insofar as the likelihood is that the future relationship will also include matters of Member State competence, it will require the ratification of the remaining Member States of the EU. The thrust of the article is for negotiated arrangements to apply at each stage. This will require the EU negotiator (in practice the EU Commission) to seek to defend the interests of the EU so as to avoid a most damaging withdrawal and in this regard to try to ensure, if possible, that the interests of the EU, its Member States and more particularly its citizens are protected while at the same time negotiating in good faith with the Member State concerned in seeking to negotiate a withdrawal that meets the interests of the Member State concerned provided that they do not undermine the interests of the EU itself, including its Member States and its citizens.31 The lack of precision in Article 50 TEU raises a number of issues that remain to be determined. Łazowski has indicated that ‘Article 50 TEU only provides a skeleton framework which leaves a lot of questions unanswered.’32 At the time, various assumptions were made about the course of the Brexit negotiations which have not been realised. This indicates the open nature of Article 50 TEU and the degree of flexibility that it has. The question remains 29 See Blanke and Mangiameli, TEU, referring to Athanassiou, ‘Withdrawal and expulsion from the EU and EMU: Some reflections’ (2009) European Central Bank Legal Working Papers No 10, 23–27. 30 E Eerola et al, ‘Citizens should vote on Secession’ (2004) Discussion Paper No 14, Helsinki Centre of Economic Research. In the context of Brexit, the UK government obtained certain concessions from the other Member States prior to the UK referendum in 2016, conditional on a vote against withdrawal. 31 It is to be noted that in its judgment in the Wightman case, the Court of Justice refrained from making any reference to the future relationship of the United Kingdom apart from referring to the provisions of Art 50(2) TEU itself. 32 A Łazowski, ‘Procedural Parameters of EU Withdrawal’ in C Closa (ed), Secession from a Member State and Withdrawal from the European Union Troubled Membership (Cambridge, Cambridge University Press, 2017) 256. Łazowski also indicates in his chapter that areas of Art 50 constitute ‘terra incognita’ insofar as many aspects remained to be explored, including the regulations of the negotiations per se and the mechanics of a transitional arrangement following withdrawal and before the future relationship is concluded. The former has been addressed in practice in the course of the negotiations between the EU and the UK, but it is not clear whether alternative avenues could legitimately have been followed.

356  Aindrias Ó Caoimh how far one can go in the withdrawal agreement to determine the future relationship. In practice the Brexit negotiations have proceeded on an initial withdrawal agreement and a loose framework for the future relationship which, it is intended, will be the subject of a future agreement, which is likely to involve complex negotiations. It appears that this agreement will require to be ratified by each of the Member States. – Łazowski has indicated that the complexity of the Brexit process and its consequences are largely underestimated.33 He argues that a no-deal Brexit is to be avoided at all costs.34 Article 50 TEU itself is silent as regards withdrawal from the EU of a euro Member State, and this has been criticised by Athanassiou, who states that that the exit clause is one of the major faults of the Lisbon Treaty.35 Athanassiou then adds: As for how the exit clause’s weaknesses might be rectified, it is argued that nothing short of the express inclusion in the exit clause of a requirement for negotiated withdrawal from EMU (involving both the Council and the ECB) would suffice because (i) withdrawal from EMU is too far reaching and complex a matter to be amenable to the exercise of a right of unilateral withdrawal … and (ii) the EC [sic] Treaty is clearly opposed to the possibility of unilateral withdrawal, at least in the context of EMU.36

Insofar as the withdrawal agreement is required to ‘take account of the framework for its future relationship with the Union’, it is far from clear what this ‘framework’ should contain and the extent, if any, to which the framework will bind the parties to the conclusion of an agreement on the future relationship. It is possible that the withdrawing Member State will continue to be subject to the EU Treaties until agreement is reached on its future relationship with the EU under Article 50(3) TEU. This suggests that the future relationship will be negotiated, as its withdrawal, in accordance with the provisions of Article 218(3) TFEU. Were the Treaties to have ceased to apply to the state in question, then it is clear that ­Article 218(3) TFEU would apply. Eeckhout and Frantziou opine that the agreement on the future relationship does not require mixity.37 The provision for extending the period before which the EU Treaties shall cease to apply to the Member State in question is one that facilitates what will most probably be complex negotiations, not only in regard to the withdrawal itself but also in regard to the future relationship. Blanke and Mangiameli opine that the possibility for the withdrawing Member State to participate, in its new status, in some of the EU politics may lead to a sort of ‘cherry picking’ and partial membership, in circumstances where no partial withdrawal is possible.38 Eeckhout and Frantziou provide a more detailed analysis of Article 50 TEU and indicate that ‘setting out the arrangements for … withdrawal’ can hardly amount to ­regulating the full organisation of the future relationship.39



33 ibid,

256. 235. 35 Athanassiou, ‘Withdrawal’, n 29, 29. 36 ibid at 29. 37 Eeckhout and Frantziou, ‘Brexit and Article 50 TEU’, n 18, 717. 38 Blanke and Mangiameli, TEU, n 13, 1409. 39 Eeckhout and Frantziou, ‘Brexit and Article 50 TEU’, n 18, 715. 34 ibid,

From Rome to Lisbon and from Lisbon to Brexit  357 With regard to acquired rights to private and family life, Eeckhout and Frantziou argue that under EU law, including the Charter of Fundamental Rights of the European Union (Charter) and general principles of EU law, the EU and, under the European Convention of Human Rights (ECHR), the UK would to a comparable degree be under separate obligations to respect rights to private and family life, absent an agreement to this effect in the context of the withdrawal of the United Kingdom.40 These authors conclude further that ‘based on a constitutionalist reading of Article 50 TEU, the guarantee of the rights to private and family life as assessed … above must not only be the object of any eventual agreement, but the very starting point of any negotiations so as to preclude the dehumanisation ensuing from the use of rights as bargaining chips’.41 However desirable this may be, at the time of writing of this article, the outcome of the negotiations on Brexit remains to be established and inevitably many persons who have enjoyed such rights in the context of UK membership of the EU remain in a state of uncertainty as regards the future. With regard to other acquired rights, Eeckhout and Frantziou argue that the EU is obliged under EU law, including the Charter, to protect the fundamental rights of UK citizens in EU law. On the basis of this proposition they argue that EU institutions must therefore strive to reach agreement in which acquired rights derived from EU law continue to be protected in the UK in respect of EU citizens and other legal persons in the UK, to the extent to which they were understood prior to withdrawal. While the authors recognise that EU citizens in the UK may not be able to argue in favour of a legitimate expectation for such protection being afforded by the UK, they contend for legitimate expectation that EU institutions will seek to protect EU citizens in the event of a withdrawal. A reading of the European Council guidelines for Brexit negotiations42 indicates its wish to have the United Kingdom as a close partner in the future and that any agreement will have to be based on a balance of rights and obligations and ensure a level playing field, notably in terms of competition and state aid. It indicates that the four freedoms of the Single Market are indivisible and that there can be no ‘cherry picking’. The document makes clear that the first priority is to agree reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens. It is further ­indicated that for EU and UK businesses there should be no legal vacuum on withdrawal, and negotiations should seek to address uncertainties. While the guidelines address other areas of particular relevance to the UK, it is clear that they contain matters that would arise in the context of any Member State indicating its intention to withdraw from membership of the EU. While Article 50 TEU itself provides for the procedure for withdrawal and the negotiation of the future relationship with the Member State concerned, it is silent as to whether a Member State may withdraw the notification of its intention to withdraw from the EU. This issue has now been addressed by the Court of Justice in reply to a reference for a ­preliminary



40 ibid

at 4.3.2.1. at 4.3.2.2. 42 www.consilium.europa.eu/en/press/press-releases/2017/04/29/euco-brexit-guidelines/. 41 ibid

358  Aindrias Ó Caoimh ruling from the Court of Sessions in Scotland.43 The question posed by the Court of Sessions is: Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU?

While Article 50 TEU itself is silent on the issue, Blanke and Mangiameli express the view that there should be no problem if all the Member States consent, but go on to say that ­Article 50 anticipates that such withdrawal does not require the consent of the other parties.44 If it appeared that the withdrawal was to constitute an abuse of Article 50 TEU itself, a different approach to the issue might exist. Eeckhout and Frantziou indicate that ‘in the absence of abuse, it is difficult to detect constitutionally sound reasons for rejecting revocability’ and conclude, overall, that ‘provided there is a new decision not to withdraw taken in good faith, the Article 50 TEU clock can be stopped.’45 The full Court sitting in plenary formation answered the question posed on 9 December 2018 as follows: Article 50 TEU must be interpreted as meaning that, where a Member State has notified the ­European Council, in accordance with that article, of its intention to withdraw from the ­European Union, that article allows that Member State – for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired – to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

In its judgment, the Court rejected arguments of admissibility raised by the United ­Kingdom and the Commission and, on the substance of the case, rejected the submissions of the Commission and the Council that such a withdrawal required the consent of the other Member States. The Court indicated in substance that such a withdrawal should follow the same procedural requirements as the notification of intention to withdraw from the EU itself, namely in accordance with the Member State’s own constitutional requirements. The Court’s judgment followed the Opinion of Advocate General Campos ­Sánchez-Bordona, who proposed that the Court should answer the question posed in a manner largely followed by the Court. While he referred to the possibility of an abuse of

43 Case C-621/18 Wightman and others EU:C:2018:999. The issue has been raised by members of the S­ cottish Parliament in the apprehension of a withdrawal from the EU by the United Kingdom without an agreement being reached under Art 50 or in circumstances where the agreement may not be approved by a majority of the members of the UK Parliament. See www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-foropinions/2018csih62.pdf?sfvrsn=0. 44 Blanke and Mangiameli, TEU, n 13, 1410. 45 Eeckhout and Frantziou, ‘Brexit and Article 50 TEU’, n 18, 714.

From Rome to Lisbon and from Lisbon to Brexit  359 process, the Court did not make any direct reference to such a possibility, apparently satisfied that if the withdrawal of the notice of intention to withdraw from the EU was adopted in accordance with a Member State’s constitution, this would essentially exclude the question of abuse, especially where the Court indicates that such withdrawal brings the withdrawal procedure to an end.

IV. Conclusion While it is clear that the introduction of Article 50 TEU has introduced a fundamental change to the founding treaties with potentially negative consequences, some of which were identified in the course of the debates leading to its introduction, it is not easy to ascertain the full consequences of such a fundamental change. At a time of growing anti-EU s­ entiment in a number of Member States, with new parties emerging calling for secession from the EU in a number of these states, it is unlikely that the introduction of Article 50 TEU itself has caused this sentiment. However, its introduction has channelled this sentiment to seek secession from the EU rather than to address the need for policy or institutional reform of the EU. The introduction of Article 50 TEU carries with it the risk that rather than impelling greater solidarity among Member States in working together to overcome particular problems, politicians may be tempted to use the provisions of this article and a threat to invoke it to seek to obtain changes so as to provide for special treatment of their particular Member State. The existing treaties have provided for enhanced cooperation,46 which enables nine or more Member States to act together to further the objectives of the EU in a process which shall aim to further the objectives of the EU, protect its interests and reinforce its integration process. Such cooperation is open at any time to all Member States, in accordance with Article 328 TFEU. While there exists under the EU Treaties47 an opt-out for the UK, Ireland and Denmark in the Area of Freedom, Security and Justice, and for Denmark and the UK in the field of Economic and Monetary Union, these opt-outs were accorded to overcome the resistance of the latter two states to the degree of integration in the Area of Freedom, Security and Justice, the situation of Ireland was essentially accorded so as to prevent further divisions on the island of Ireland between the Irish state on the one hand and Northern Ireland on the other hand. These opt-outs have not been particularly controversial. On the other hand, the opt-out demanded by and accorded to the UK from the provisions of the Charter and subsequently accorded to Poland48 are more controversial. Looking on the bright side ­Hillion says: It will hopefully come clear that the inclusion of a withdrawal clause in the Treaty on European Union means that it is subject to EU rules rather than governed by the classic cannons of public international law. Moreover, and somewhat paradoxically, the recognition of a right to leave can



46 Art

20 TEU and Title III of Pt 6 of TFEU. V Pt 3 and Title VIII Pt 3 TFEU. 48 Protocol 30 annexed to the Lisbon Treaty. 47 Title

360  Aindrias Ó Caoimh contribute to the pursuit of an ‘ever closer union among the peoples of Europe’ precisely by making it possible for a state to step out of, rather than hold up the integration process.49

It is also true that the framework of Article 50 TEU may ensure a smoother withdrawal than might otherwise be the case. In addition, by establishing appropriate negotiation guidelines, it may ensure that the provisions of this article are not abused and that the essential interests of the EU are protected in any negotiations. Nevertheless, it appears that the inclusion of Article 50 TEU has given rise to some instability in the EU and has encouraged the growth of political parties opposed to the EU. It is clear that the withdrawal of any Member State is damaging to the EU and in particular imperils the rights of its citizens, as recognised by the ECJ itself in the Wightman judgment.50 It is difficult to imagine that those responsible for its inclusion in the Lisbon Treaty fully appreciated what were to be the consequences of this fundamental change in the founding treaties. Consideration should be given to amending the provisions of Article 50 TEU to further protect the EU if its repeal is not to occur, in order to ensure that the ideals of the founding members of the European Communities, as reflected in the Treaty of Rome establishing the EEC, are maintained.

49 Hillion, ‘Leaving the European Union’, n 28, 1. See also C Hillion, ‘This way, please! A legal appraisal of the EU withdrawal clause’, in C Closa (ed), Secession from a Member State and Withdrawal from the European Union Troubled Membership (Cambridge, Cambridge University Press, 2017) 233. 50 Case C-621/18 Wightman and others EU:C:2018:999.

INDEX absorption, principle of  299–301, 303, 309 abuse of process  358–9 access to documents, right of viii–ix, 188, 194 Ackerman, Bruce  45 ADDH case xiii, 251–7, 259–60 administrative courts judicial dialogue  xi, 129–43 preliminary rulings  xi, 129–43 supreme courts  xi, 129–43 adversarial principle  186–95, 198–9 AETR case  285–6, 295, 301–3, 306, 310 AFSJ see area of freedom, security and justice (AFSJ) age discrimination  150–4, 160 Aho, Esko  89 Ajos case, request sent by Supreme Court of Denmark in  145–62 age discrimination  150–4, 160 Charter of Fundamental Rights of the EU  155, 158 historical context  147–9, 155–6 Law on Accession  153–5 lex posterior rule  150, 155–6 mutual trust  146 preliminary ruling mechanism, role of  xi, 145–62 primacy of EU law  146, 150–2, 158 scepticism towards EU  146, 147 Taricco II case (Italian Constitutional Court)  xi, 145–6, 155–9 temporal limitations  149, 153 ultra vires  147–8 unity of the legal order  150, 158 Amsterdam Treaty  35, 65, 328, 350 annulment actions  5–9, 197–9 appeals  116–17, 122, 132, 177, 179–80 Arangio-Ruiz, Gaetano  333 area of freedom, security and justice (AFSJ) see also mutual trust principle in area of freedom, security and justice (AFSJ) citizens’ right to have rights  211 Court of Justice (CJEU)  vi, viii extradition  1, 315–16, 319 internal market  25 judicial cooperation  25 opt-outs  359 Argentina  274 Aristotle  248–9

Article 50 exit clause (TEU) xiv, 347–60 abuse of process  358–9 Brexit  60–1, 318–19, 343, 347, 354–9 Charter of Fundamental Rights of the EU  357, 359–60 citizenship, loss of  354 competences  350–2 conditions  355 Constitutional Treaty  347–8, 352 cooperation, duty of  354, 359 EU Treaties  347–60 future relationship, agreements on  356 mixity  356 revision, proposal for  xiv ever closer union, fundamental nature of  xiv, 348–9 expulsion of member states from EU  328–9, 331–2 future  355–9 genesis  347–51 impact of exit on the EU  xiv, 351–4 institutions  353–4, 357 continued involvement with  351 effectiveness  353–4 negotiations  354, 355–7, 360 notification  343 partial withdrawal  356 political blackmail  347, 355, 359 procedure  355, 357–8 unilateral revocation  339 unilateral withdrawal before Article 50, right to  352 withdrawal of notification  357–8 association agreements  173–5 asylum seekers see also refugee crisis and CJEU Brexit  344 citizenship  66 destitution  267 Common European Asylum System (CEAS)  4, 12, 26, 164, 167–9 Dublin Regulation  167 Geneva Convention, persecution under  282 interpretation ix–x, 4, 10–18 non-refoulement  283–5 Istanbul Convention on Domestic Violence, EU accession to  282–6

362  Index austerity measures Brexit  48 Committee on Economic, Social and Cultural Rights (UN CESCR)  272–6 Council of Europe Commissioner for Human Rights  269–70, 275–6 Parliamentary Assembly  269–70 Steering Committee for Human Rights, feasibility study of  270 crisis, as a response to a  262 definition  262–3 disabilities, persons with  269–70 discrimination  273–4 ECtHR, approach of  271–2, 275–6 emergency bailouts in EU  262 external actors, actions of  262 global financial crisis  2007–8 262–3, 270, 273 health care  263–4, 269–72 human rights  261–2, 269–75 IMF  261, 263, 273–4 life, right to  275 loans, as condition for obtaining  273–4 macroeconomic policies  263 neoliberalism  261, 273–4 resources  275–6 structural adjustment  273 Australia  268 Austria  3, 14, 17, 41, 133, 137 authoritarian regimes  328 autonomous movements  48 autonomy  22, 30, 32, 111, 113–14 bailouts  262 Bauman, Zygmunt  45 behavioural macroeconomics  87 Belgium  64–5, 94, 101, 134, 135, 137 Bernanke, Ben  89 Bougnaoui case  251–7 Brazil  48 Brexit v, 339–46 abuse of process  358–9 AFSJ  174–6, 359 Article 50 exit clause  60–1, 318–19, 347, 354–9 negotiations following lodgement  343 notification  343 unilateral revocation  339 austerity measures  48 backstop  61 best endeavours obligations  354 Bratislava roadmap  343 Charter of Fundamental Rights of the EU  174 citizenship  60–1, 345 Commission  343 common law  49

complexity of EU  342 dissenting opinions of CJEU  99 engrenage, theory of  341 European Arrest Warrant (EAW)  174–5, 318–19 European Council  339, 340–1, 343, 357 eurozone crisis  48 expert knowledge, denigration of  339–40 extradition  318–19 federal United States of Europe, move towards  341 free movement of persons  xiv, 344–5 fundamental rights  357 House of Commons  339 immigration xiv, 344–6 institutions of EU and US, comparison between  341–2 integration  341 internal market  xiv, 344 Ireland  60–1, 318–19 media distortion of traditional media  339 hostility to EU  345 national identity  48–9 negotiations  354, 355–7 no-deal withdrawal  354, 356 Northern Ireland  60–1 nullification, doctrine of  342 personality of EU  343 Political Declaration  174–6, 339–40, 342 populism  339 referenda debates  52 refugees, asylum seekers and migrants  344 rule of law  354 Scotland, Court of Sessions in  357–9 second referendum  344 security cooperation  174–5 shared sovereignty  343 social media, manipulation of  339–40 societal divisions  339–40 state sovereignty  xiv, 340–3, 346 ‘taking back control’  340–1 third country, UK as  174–5 unilateral revocation of Article 50  339 Withdrawal Agreement  60–1, 39–40, 342, 355–6 Brussels I Regulation  168–9 budgetary policy, soundness of  76–8, 80–1 Bulgaria  102, 133, 135, 137 Cameron, David  264–5, 340–1, 345 Canons of Judicial Ethics (ABA)  104–5 Cartesio case  217–22 Cassis de Dijon case  24, 228, 230–1, 238–42 Catalonia  48 central management and control of companies, transfer of  215–18

Index  363 Centros case  216–17, 222, 224 certainty see legal certainty Charter of Fundamental Rights of the EU (CFR) age discrimination  155, 158 Article 50 exit clause  357, 359–60 Brexit  174 citizens’ right to have rights  201–2, 205–8, 212 citizenship  52–3, 57, 63, 65, 201–2, 205–8, 212 confidential treatment of security-related material  192–3 discrimination  8 extradition  318 free movement of goods  227–35, 238, 240, 242 fundamental rights  46–7 inhuman or degrading treatment  11–12, 318 integration  44 judicial dialogue  142 Lisbon Treaty  155 loyal cooperation  30–2 mutual trust principle  26, 30–1, 165–6, 174 Omega Spielhallen case  vii opt-outs  359–60 primary law, as  155 refugee crisis  8, 10–13, 18 safety valve, as  10–12 Taricco II case (Italian Constitutional Court)  157 thought, conscience and religion, freedom of  251 child poverty in the UK  265, 266–7 children see also child poverty in the UK custody and visitation rights  282 Istanbul Convention on Domestic Violence, EU accession to  281–2 churches and religious associations or communities, status under national law of  237 CILFIT criteria  160 citizenship see nationality/citizenship civil service matters appeals  117 Civil Service Tribunal  115–16, 118–19, 122–3, 126 Court of First Instance (CFI)  120 civil society viii, 247, 264–5 CJEU see Court of Justice (CJEU) CK case  11–12 climate change  90 Cohn-Bendit v Landtová  140–3 comity  30 Commission Article 50 exit clause  354 Brexit  343 citizens’ right to have rights  201, 212 fiscal policy rules  x, 83

Istanbul Convention on Domestic Violence, EU accession to  285 preliminary rulings  160 Committee of the Regions  35 Committee on Economic, Social and Cultural Rights (UN CESCR)  272–6 Common European Asylum System (CEAS)  4, 12, 26, 164, 167–9 common foreign and security policy (CFSP) vi, vii, 185–6 companies see cross-border mobility of companies competences see also conclusion of international agreements and non-exclusive external competence Article 50 exit clause  350–2 exclusive external competence  xiii, 285–6 extradition  312 Istanbul Convention on Domestic Violence, EU accession to  284–5, 289 transfer  148 competition  178–9, 224, 242 conclusion of international agreements and non-exclusive external competence  293–310 absorption, principle of  299–301, 303, 309 AETR principle  295, 301–3, 306, 310 CJEU, case law of  xiii, 301–3 constraints on choice to exercise competence  295 cooperation and related obligations, duty of  303–6 exclusive competence  293–309 exercise of competence  294–8, 306–7 facultative mixed agreements  xiii, 294–5, 299–306 conclusion, obligations concerning exercise of competence in  306–9 obligations concerning exercise of competence  306–9 horizontal effect  302–3 institutions, freedom of  299–306 internal competence  296–7, 306 legal bases  295–6, 300–3, 307 Lisbon Treaty  297–8, 301–3 mixed agreements  xiii, 294–5, 298 conclusion  294 facultative mixed agreements  xiii, 294–5, 299–310 false mixity  299 obligatory mixity  294–5 nature of competence  293 pacta sunt servanda  305 power-conferring traditions  295–6 pre-emption, principle of  295, 309–10 shared competence  293, 296–7, 307, 309–10 TFEU  293–7 conferral, principle of  36, 46, 331

364  Index confidential treatment of security-related material before General Court  185–99 adversarial principle  186–95, 198–9 annulment actions  197–9 appeals  194 burden of proof  190 case law of EU courts  xii, 189–94 Charter of Fundamental Rights of the EU  192–3 effective remedy, right to an  196 fair trial, right to a  189–90, 192–3 Kadi II  191–2, 195 nuclear proliferation  185 PMOI and PMOI II cases  190–2 procedural rights  186–91, 199 proportionality  193, 195, 198–9 reasons for non-disclosure  191–2 restrictive measures  185–92, 197–9 rule of law  185, 187 Rules of Procedure Article 105  185–99 Security Council (UN) resolutions  185–6 terrorism  188–9, 192, 199 constitutional courts x, 36–46, 75, 101–2, 106, 133 constitutional identity  38–40, 42–4, 46–7 constitutional patriotism  49–50 constitutional pluralism  37, 43, 46 Constitutional Treaty  328–9, 331, 347–8, 352 consumer protection xiii, 233, 240–2 controlimiti doctrine  146, 156–7 cooperation Article 50 exit clause  254, 359 Brexit  354 external competence  303–6 extradition  311, 313, 315, 317, 319 judicial cooperation  23–6, 28–9, 163, 167–9, 210, 283–5, 311, 318 regional cooperation agreements  282 sincere cooperation, duty of  36, 151, 315 Costa v ENEL case  348, 349–50 Council of Europe (CofE) see also European Convention on Human Rights (ECHR); Istanbul Convention (Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence), EU’s accession to austerity measures  269–70, 275–6 Commissioner for Human Rights  269–70, 275–6 expulsion  322–3 Parliamentary Assembly  269–70 Steering Committee for Human Rights, feasibility study of  270 Council of the EU European Parliament  36 external competence  299, 304

Istanbul Convention on Domestic Violence, EU accession to  283–5, 290 Lisbon Treaty  vi–vii refugee crisis  3–4, 5–10 countermeasures  327, 334 Court of Justice (CJEU) see also confidential treatment of security-related material before General Court; dissenting opinions; General Court, future of the; preliminary rulings access to documents, right of  viii Ajos case  xi, 145–62 constitutional courts  36–8 Costa v ENEL case  348, 349–50 Denmark xi, 145–62 expulsion of member states from EU for disregard of judgments  321 mutual trust principle  164–73 new procedural techniques  189–94 number of judges and Advocates General  vi, 119–20, 122–7 per curiam  99–100 refugee crisis  ix–x, 3–19 size of court  vi subject matter, expansion of  vi workload vi, 120–2, 127 criminal procedure, common standards of xi–xii, 165, 169–72, 176 crisis management and prevention  84, 89, 93 cross-border mobility of companies  213–25 see also freedom of establishment business operations, transfer of  214, 220–4 Cartesio case  217–22 central management and control, transfer of  215–18 Centros case  216–17, 222, 224 CJEU, case law of  xii, 213–25 connecting factors  213, 217, 221, 223 conversions, cross-border  215 Daily Mail case  214, 215–19 directive, proposal for  25 freedom of establishment  xii, 213–24 future challenges  224–5 harmonisation  213, 224 inbound restrictions  217 incorporation  213–22 Inspire Act case  216–17, 224 integration  214 interpretation  214, 215–21 mergers and conversions  219–20 National Grid case  217–19 national laws  213–14 outbound restrictions  215–20, 221 place of incorporation  214, 215–16 Polbud judgment  xii, 214, 215–24

Index  365 principal place of business  218 proportionality  224 real seat theory  213, 218–20 registered offices  213–24 seat, transfer of  215–24 SEVIC Systems case  219–20 transformation operations  219–20 Überseering case  216–19 VALE case  219–20, 222 Cuba, expulsion from OAS of  323–4, 336 culture  35, 44–5, 49, 235–7, 281, 292 custodial sentences, enforcement of  316–17 customary international law international organisations, expulsion from  325 pacta sunt servanda  305, 325 rebus sic stantibus  325 cyber-bullying and cyber-harassment  291 Cyprus  102 Czech Republic  135, 137, 141 Daily Mail case  214, 215–19 damages against public authorities  133 De Grauwe, Paul  86, 90 death penalty  318 debt see sovereign debt relief deflation  89, 91 Delors, Jacques  83, 92–3 democracy  vi, vii, 50, 103, 228, 321 dissenting opinions of CJEU  103 expulsion of member states from EU  321 free movement of goods  228 institutions, breakdown of  321 integration vi international agreements, conclusion of  vii national identity  50 Denmark see also Ajos case, request sent by Supreme Court of Denmark in AFSJ, opt-out from  359 dissenting opinions  102 Economic and Monetary Union (EMU), opt-out from  359 enlargement  108 European Arrest Warrant (EAW)  171 refugee crisis  3 deprivation of liberty  282 destitution  265, 267 direct applicability  154, 201 direct effect  65–6, 141, 151–2, 290 disabilities, persons with austerity measures  269–70 Disabilities Convention  290 discrimination and inequality age discrimination  150–4, 160 austerity measures  263–4, 273–4 Charter of Fundamental Rights of the EU  8, 251

citizenship  57–8, 62, 64–5 Committee on Economic, Social and Cultural Rights (UN CESCR)  273–4 direct discrimination  249–51, 253–4, 257 Equal Pay Directive  249 Equal Treatment Directive  209–10, 249, 287, 289 Equality Framework Directive  249–50, 253, 257 ethnicity and nationality  57–8 European Convention on Human Rights  57–8 extradition  312–14, 317 family reunification  57–8 free movement of goods  230–1 gender equality  280 harassment  287–8 income equality  90–1 indirect discrimination  231, 249–51, 253–7, 259 Istanbul Convention on Domestic Violence, EU accession to  280, 283, 287, 291 life expectancy  263–4 neutrality xiii, 247, 249, 251–60 non-retrogression  274 proportionality  249, 255, 257 Race Equality Directive  249 religion in the workplace  xiii, 247–60 reverse discrimination  62 self-employment, directive on equal treatment for  287, 289 supply of goods and services, directive on equal treatment in access to and  287, 289 dissenting opinions xi, 99–109 active participation of dissenters  107 arguments against  103–5 arguments in favour  102–3 Brexit  99 civil law countries  101–2 clarity of judgments  104, 106–7 collegiality  104–5, 107–8 common law countries  101–2 concurring opinions  99, 101, 106–9 independence of judges  103, 105, 108–9 interpretation  107, 109 judge-rapporteur, role of  108 languages  108 legal certainty  103 majority opinions  99, 100, 102, 107–8 national courts  101–2, 106–7 number of participating judges  105–6 obiter dicta and ratio decidendi, difference between  104 per curiam  99–100 personal views of judges  99, 106 public confidence  103 seriatim opinions  99, 100–1, 108

366  Index transparency  103, 106–8 uniform interpretation  107, 109 diversity vii, 44, 49 documents, right of access to viii–ix, 188, 194 domestic violence see Istanbul Convention (Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence), EU’s accession to dualism  154, 156 Economic and Monetary Union (EMU)  v, x, 83–4, 92–4, 359 economic governance  83–95 behavioural macroeconomics  87 crisis management and prevention  84, 89, 93 cyclical approach to long-term economic development  90, 93 debt restructuring  95 deflation  89, 91 design, market discipline by  84 deterrence  95 economic efficiency  91 economic science  86–9 efficient financial markets  86–90, 92 EMU x, 83–4, 92–4, 359 euro area debt crisis  83 excessive financialisation  87 fiscal policy rules  x, 83–4, 93–5 fiscal sustainability  84 global financial crisis of 2008  85–8, 91, 93–4 government bond yields  84–5 helicopter money  89 herding behaviour  90, 92 income equality  90–1 inflation  89 interest rates  84 Keynesianism  87–8, 90–2, 94 Maastricht Treaty  83, 93 macroeconomics x, 84–5, 94 market discipline  x, 83–7, 92–5 monetarism  90 no-bailout clause  83 populism  91 private indebtedness  83–4 risk, misplacement of  85 rule of law  91 self-regulating and efficient financial markets, rational operation of  84, 86–7 social justice  91–2 socialisation of investment  90 sovereign debt crisis  95 spending rules  92–5 Stability and Growth Pact (SGP)  83–4, 93 structural budget balance, measurement of  94

effective remedy, right to an x, 13, 15, 196 efficient financial markets  86–90 behavioural macroeconomics  87 efficient market hypothesis  86, 92 excessive financialisation  87 global financial crisis  86–8 macroeconomics as a system of beliefs  86 rational expectations  86 self-regulating, markets as not  86–7 Egenberger case xiii, 257–60 emergency bailouts  262 emergency relocation schemes x, 3–9 employment see religion in the workplace EMU (Economic and Monetary Union)  v, x, 83–4, 92–4, 359 enlargements vi, 108, 228, 328 Enlightenment  248, 255 environmental protection climate change  90 free movement of goods  xiii, 227–30, 233, 239, 241–4 mandatory requirements  241 precautionary principle  241 proportionality  241–2 Single European Act (SEA)  241 Equal Pay Directive  249 Equal Treatment Directive  209–10, 249, 287, 289 equality see discrimination and inequality Equality and Human Rights Commission (EHRC) (UK)  265–7 Equality Framework Directive  249–50, 253, 257 equivalent protection, principle of  49 ERTA case  10, 180 Estonia  132 EU Treaties see also Lisbon Treaty; Maastricht Treaty Amsterdam Treaty  35, 65, 328, 350 Article 50 exit clause  347–60 Draft Treaty on European Union 1985  327–8 expulsion of member states from EU  322, 326–32, 333–6 explicit right  326–9, 331–2 implicit right  322, 330–2 external competence  293–7, 304 free movement of goods  227–30, 234, 236, 240, 242 future relationship, agreements on  356 mixity  356 mutual trust principle  165 Necessary and Proper Clause of TFEU  331 Nice Treaty  vi, 115–16, 118, 121–3, 328, 350 refugee crisis  18 revision, proposal for  xiv Rome Treaty 1957  347–8, 360 sovereign debt relief  75–82 travaux préparatoires  76–7, 322, 328–9, 332

Index  367 Euratom  352 European Arrest Warrant (EAW)  25–6, 60–1, 71, 166–71, 311, 317–19 European Central Bank (ECB)  80, 89 European Committee of Social Rights (ECSR)  271 European Convention on Human Rights (ECHR) accession, draft agreement on  x, 21–2, 29–30, 32–3 Article 50 exit clause  357 austerity measures  271–2, 275–6 Bosphorus presumption  31–2 Brexit  60–1 Charter of Fundamental Rights of the EU  30–2, 235 citizenship  53–71 confidential treatment of security-related material before General Court  188–94 convergence  165 co-respondent mechanism  33 discrimination  57–8 dissenting opinions  102 enter and reside, right to  66–8 European Court of Human Rights (ECtHR) affirmative rights  275–6 austerity measures  271–2, 275–6 Brexit  60–1 confidential treatment of security-related material  188–94 deference  272 dissenting opinions  102 Factsheet  271 free movement of goods  233 Istanbul Convention on Domestic Violence, EU accession to  279 loyal cooperation with CJEU  30–3 mutual trust principle  164–5 nationality  53–8, 65–71 new procedural techniques  189–94 exceptional circumstances, notion of  30, 32 fair trial, right to a  54, 166, 171, 189–90, 192–3, 208, 211, 271 free movement of goods  232–5, 238 inhuman or degrading treatment  318 Istanbul Convention on Domestic Violence, EU accession to  279 loyal cooperation between CJEU and ECtHR  30–3 margin of appreciation  271–2 mutual trust principle  163–6, 171–4 nationality  53–8, 65–71 new procedural techniques  189–94 positive obligations  279 private and family life, right to respect for  53–61, 65–9 procedural mechanism  30

third country nationals  x, 53, 63, 66–8 thought, conscience and religion, freedom of  57, 251 European Council  93, 171, 339, 340–1, 343, 357 European Court of Justice see Court of Justice (CJEU) European Financial Stability Mechanism/Facility (EFSM/EFSF)  76, 78, 79, 81, 93 European Political Community of 1953, Draft Treaty on  327–8 European Parliament Article 50 exit clause  354 Brexit  343 Common Foreign and Security Policy (CFSP)  vi Lisbon Treaty  vi–vii, 36 national identity  36 pre-emption  343 Spitzenkandidat  343 European Social Charter (ESC)  271 European Stability Mechanism (ESM)  93 Europeanisation of national public law  133–4 eurozone debt crisis  48, 83 exhaustion of autonomous remedies xiv, 321, 333, 334, 337 exit clause see Article 50 exit clause (Lisbon Treaty) expert knowledge, denigration of  339–40 expulsion of member states from EU  321–37 autonomous remedies  327, 336 budget, penalty sums against amount due from EU  337 CJEU, disregard of judgments of  321 collective expulsion power  333–6 core values, breach of  327–8, 330 countermeasures  327, 334 de facto expulsion  331 de jure expulsion  331 democratic institutions, breakdown of  321 essential rules, breach of  321, 335 exhaustion of autonomous remedies  xiv, 321, 333, 334, 337 fundamental change of circumstances doctrine  325–6, 334–6 infringement procedure  332, 333, 337 international organisations, expulsion from  xiv, 321, 322–6 Charter of UN  322–3 constituent instruments, lack of explicit provision in  324–6 Council of Europe, Statute of  322–3 customary international law  325 essential provisions, breach of  324–5 fundamental change of circumstances doctrine  325–6 ICJ  323–4 implied powers  324 League of Nations  322, 336

368  Index legality  324 OAS Charter  323–4, 336 South Africa’s expulsion from Universal Postal Union (UPU)  323–4 Vienna Convention on the Law of Treaties  324–6 irreversibility of EU membership  328, 332, 333 last-resort measure, as  321–2, 327–8, 336 self-contained regime, EU as  333 serious and persistent breaches of core values  327–8, 330 state responsibility rules  333 suspension clause in  327–8, 330, 332, 333, 336–7 travaux préparatoires of EU Treaties  322, 328–9, 332 Vienna Convention on the Law of Treaties  324–6, 334–5 external competence see conclusion of international agreements and non-exclusive external competence extradition  311–19 AFSJ  311, 315–16, 319 agreements, compatibility of case law with  317 alternative measures  315 Brexit  318–19 Charter of Fundamental Rights of the EU  318 citizenship xiv, 71, 312–14, 317, 319 CJEU, role of  xiv, 71, 311–19 cooperation  311, 313, 315, 317, 319 custodial sentences, enforcement of  316–17 death penalty, risk of  318 discrimination  312–14, 317 European Arrest Warrant (EAW)  71, 168, 311, 317–19 European Convention on Extradition  316 impunity  313 judicial cooperation  311, 318 nationality discrimination  312–14, 317 ne bis in idem  317 permanent residence, effect of  71 Petruhhin case  xiv, 312–15, 317 piracy  313 Pisciotti case  xiv, 312, 315–17 Raugevicius case  xiv, 312, 316–17 rehabilitation of offenders  317 sincere cooperation, principle of  315 specialty principle  311 terrorism  311 third states  311–19 facultative mixed agreements  299–310 absorption, principle of  299–301, 303, 309–10 AETR principle  295, 301–3, 306, 310 conclusion, obligations concerning exercise of competence in  306–9

cooperation and related obligations, duty of  303–6 external competence  xiii, 294–5, 299–310 institutions, freedom of  299–306 obligations concerning exercise of competence  306–9 fair trial, right to a  54, 166, 171, 189–90, 192–3, 208, 211, 271 family reunification  57–8, 63 Federal Reserve (United States)  86 financial assistance under EU law x, 76–82 financial markets see efficient financial markets Finland depression in 1990s  84–5, 89 dissenting opinions  102 dual court systems  133 judicial dialogue  133, 135 preliminary rulings  133, 135 Supreme Administrative Court  xi, 132–3, 137–43 transparency viii fiscal policy rules x, 83–4, 93–5 fishing licences xii, 179 France Cohn-Bendit v Landtová  140–3 Conseil d’État  130, 131 Constitution  311 constitutionality question procedure (QPC)  64 direct effect of non-implemented directives  140–1 dissenting opinions  101–2 dual court systems  133 judicial dialogue  130–3, 135, 137 preliminary rulings  130–3, 135, 137 referenda debates  52 free movement see also free movement of persons; freedom of establishment citizens’ right to have rights  204 derogations  40 European Arrest Warrant (EAW)  166 fundamental rights  vii integration vii national identity  40–3, 49–50 Omega Spielhallen case  vii free movement of goods  179, 227–45 artistic, historic or archaeological value, national treasures of  231, 236 Cassis de Dijon case  228, 230–1, 238–42 Charter of Fundamental Rights of the EU  227–35, 238, 240, 242 consumer protection  xiii, 233, 240–2 culture and traditions  235–7 environmental protection  xiii, 227–30, 233, 239, 241–4 EU Treaties  227–30, 234, 236, 240, 242

Index  369 European Convention on Human Rights  232–5, 238 fairness of intra-EU trade  242 fragmentation  230 free movement of persons, separation from  344 fundamental rights  xiii, 227, 232, 234–5, 238, 240, 242–5 harmonisation  228–30 health, protection of  xiii, 231, 233, 239–43 indistinctly and distinctly applicable measures  244 industrial and commercial property  231, 242 integration  227, 229, 235–6, 238–9 internal market  227–9, 231–4, 239 justification of restrictions  xii–xiii, 231–42 Keck and Mithouard  239–41 language  235–7 legal certainty  228, 244 legitimate aims  233–4, 236, 242, 244–5 life of humans, animals or plants, protection of  231, 240 mainstreaming principle  227 mandatory requirements  228–9, 231–4, 238–42 measures having an equivalent effect  228–31, 239–41 national identity  xiii, 235–7 national restrictions  xiii, 228–31 proper functioning of society  xiii, 237–8 proportionality xiii, 228, 232–3, 241–4 public finances, sound and sustainable  238 public interest  228, 231–42, 244–5 public morality, public policy or public security  231, 233–4, 237–8, 240 quantitative restrictions  228 rule of law  228 rule of reason  229, 231 social dimension  238–9 social justice  227 social security system, proper functioning of  238–9 subjects requiring protection  231 unfair competition  242 values  228, 235–7 free movement of persons Brexit xiv, 344–5 citizenship  52–3, 58–9, 62, 65–73, 345 direct effect  65–6 economic activity  345 extradition xiv, 71, 312–15 free movement of goods, separation from  344 immigration  344 internal market  xiv public policy, public security and public health  345 toxic in UK, idea as  344 transitional arrangements  66

free movement of services  179 freedom of establishment xii, 213–24 abuse of right  216 central management and control, transfer of  215–16 economic activities in another member state  223 establishment, definition of  222–3 fixed establishments for indefinite periods  223 interpretation  214, 215 letterbox companies  223 mergers and conversions  219–20, 223 national laws, conflict with  213–14 Polbud judgment  xii, 214, 215–24 proportionality  216, 223–4 public interest  223 scope  215–20 seat, transfer of  214 transformations  219–20 freedom, security and justice see area of freedom, security and justice (AFSJ) fundamental rights see also Charter of Fundamental Rights of the EU (CFR) Brexit  357 Charter of Fundamental Rights of the EU  46–7 citizens’ right to have rights  202–8 citizenship  68, 202–8 European Committee of Social Rights (ECSR)  271 European Social Charter (ESC)  271 free movement  vii, xiii, 227, 231, 233–4, 239–43 Istanbul Convention on Domestic Violence, EU accession to  280 judicial activism  43 mutual trust principle  xi–xii, 26, 32, 164, 167–72, 176 national identity  40, 42–3, 46–7, 49–50 Omega Spielhallen case  vii refugee crisis  11–12, 19 values vii Furstin von Sayn-Wittgenstein case  42–3 future relationship, agreements on  356 G4S Secure Solutions case xiii, 251–7, 259–60 GATT  231 General Court see confidential treatment of security-related material before General Court; General Court, future of the General Court, future of the  111–27 administration ix, 111–13, 118–20, 127 annulment of decisions  118 appeals to Court of Justice on points of law  116–17, 122 autonomy  111, 113–14

370  Index budgetary discharge  114 chambers  125–6 civil service matters appeals  117 Civil Service Tribunal  115–16, 118–19, 122–3, 126 Court of First Instance (CFI)  120 Code of Conduct  114–15, 119 common resources  119–20 complex cases  120, 127 consistency  112, 125 Consultative Committee  119 Court of First Instance (CFI)  115, 118, 120–1 Court of Justice attachment to  111, 118 unburdening the  120–4 disciplinary measures  114 emergence of a judicial organisation  115–20 Ethics Committee  119 expanding role  xi, 111 infringement proceedings  121 interim measures  111 judge-rapporteurs, assignment to  126 judicial relations between courts  115–18 length/duration of proceedings  124–5 managerial approach  118 monitoring appointments  114 number of judges  119–20, 122–7 organisation  111, 115–20, 124–7 political objectives  112 preliminary reference procedure  112, 117 procedural rules  114, 125–7 proper functioning of General Court  122–4 reform xi, 111, 120, 122–3 internal measures  124–7 structural  111 remedies, choice of legal  115–20 removal of judges  114 resources  119–20, 127 size  111, 119–20, 122–5 specialised courts  115–16, 118–19, 122–3, 126 staff, increase in  111, 124 Statute of CJEU  112, 113, 114–21, 125, 127 transfer of jurisdiction  xi, 120–4 workload  120–3 gender equality  280 general principles of EU law  22–3, 146, 149–50, 154, 357 Germany Conseil d’État, links with  131 dual court systems  133 eternity clause  36–7 Euratom  352 Federal Constitutional Court  36–7, 43, 101–2, 147–8, 157

Federal Supreme Court in  131, 133, 141–2 integration  36–7 judicial dialogue  131, 133, 135, 137, 141–2 preliminary rulings  131, 133, 135, 137, 141–2 refugee crisis  3, 12, 14, 17 reunification  352 secrecy of judicial deliberations  101 subjective rights of individuals  131 global financial crisis 2007-2008 austerity measures  262, 264, 268–70, 273 bailouts  262 deflation  91 economic governance  85–7, 91, 93–4 efficient financial markets  86–8 emergency financial assistance  85 eurozone debt crisis  48, 83 macroeconomic policies  263 US subprime mortgage market  85 globalisation  91 goods see free movement of goods governance see economic governance government bonds  84–5 Great Depression  91 Greece austerity measures  262, 264, 269–71, 275 Constitution  102 dissenting opinions  102, 106 dual court systems  133 emergency relocation scheme  3–4, 6–8 judicial dialogue  133, 135, 137 preliminary rulings  133, 135, 137 refugee crisis  3–8, 11, 30 sovereign debt crisis  85 Greenspan, Alan  86 Habermas, Jürgen  49 habitual residence  282 harassment  287–9, 291 harmonisation companies, cross-border mobility of  213, 224 free movement of goods  228–30 judicial dialogue  133, 140 mutual trust principle  23–4, 27 national identity  39 preliminary rulings  133, 140 hate speech  291 health care austerity measures  263–4, 271–2 free movement of goods  xiii, 231, 233, 239–43 human rights see also austerity measures and human rights in UK; European Convention on Human Rights (ECHR); fundamental rights austerity measures  261–2, 269–75

Index  371 Committee on Economic, Social and Cultural Rights (UN CESCR)  272–6 confidential treatment of security-related material before General Court  185 effectiveness of rights  331–2 expulsion of member states from EU  321, 327–8, 331–2 Human Rights Committee (UN)  274–5 integration vi Universal Declaration of Human Rights (UDHR)  60 Hungary  12 Iceland  175 identity see national identity and EU law immigration  xiv, 344–6 see also asylum seekers; refugee crisis and CJEU Brexit  344–6 citizenship  66 free movement of persons  344 hostile environment  345 internal frontiers  v internal market  344 Istanbul Convention on Domestic Violence, EU accession to  282, 286 migration flows  v refugees, asylum seekers and migrants  344 Scotland  345 Single European Act  344 smuggling  185 third states, from  344–5 income inequality  90–1 incorporation of companies  213–22 independence and impartiality European Arrest Warrant (EAW)  166–71 General Court, future of the  xi, 111–12, 114–16, 118 judiciary  103, 105, 108–9, 201, 206–7, 211, 318 indirect effect  290 indistinctly and distinctly applicable measures  244 industrial and commercial property  231, 242 inflation deflation  89 helicopter money  89 low-flation  89 infringement proceedings xii, 177, 180–1, 208, 209–10 inhuman or degrading treatment  11–13, 166, 172, 279, 318 Inspire Act case  216–17, 224 institutions Article 50 exit clause  353–4, 357 democratic institutions, breakdown of  321 external competence  299–306, 309–10 US institutions, comparison with  341–2

integration Article 50 exit clause  351–2, 359 Brexit  341 Charter of Fundamental Rights of the EU  44 citizenship  52, 61–2, 66, 68–71 companies, cross-border mobility of  214 deepening integration  vi diversity  49 extradition  317 free movement  vii, 227, 229, 235–6, 238–9 judicial dialogue  133, 136 Lisbon Treaty  36, 44 mutual recognition and mutual trust  viii national identity  x, 36, 44, 46, 49–50 populism v preliminary rulings  133, 136 residence rights  71 statistical data  vi widening vi interest rates  84 interim measures  111 internal market AFSJ x, 22–5 Article 50 exit clause  350, 352 Brexit xiv, 344 free movement of persons  227–9, 231–4, 239 free movement of persons  xiv immigration  344 mutual trust principle  x, 22–5 Single European Act  350 values  228 international agreements see conclusion of international agreements and non-exclusive external competence International Chamber of Commerce (ICC)  102 International Court of Justice (ICJ)  54, 72–3, 102, 323–4 international courts dissenting opinions of CJEU  102 International Court of Justice (ICJ)  54, 72–3, 102, 323–4 international law see also customary international law age discrimination  147 citizenship x, 65–7 expulsion of member states  xiv, 329, 333–6 rule of law  vii International Monetary Fund (IMF)  261, 263, 273–4 international organisations, expulsion from see expulsion of member states from EU interpretation consistent interpretation  150–2 dynamic interpretation  141 preliminary rulings  141

372  Index primacy interpretation  150–2 teleological interpretation  141, 159 uniform interpretation  107, 109 IR v JQ case xiii, 258–60 Iraq, embargo on  179–80 Ireland accession  108, 146 Article 50 exit clause  347, 349 austerity measures  262, 270 Brexit  318–19 citizenship  60–1 dissenting opinions  102 European Arrest Warrant (EAW)  171 nationality, withholding  65 Northern Ireland  60–1, 359 opt-outs  359 sovereign debt crisis  85 Islamic headscarf cases  251–7, 258–60 Istanbul Convention (Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence), EU’s accession to  279–91 accession  283, 289–90 AETR case  285–6 CEDAW  279–80 Council of Europe Committee of Ministers Recommendation  279 criminalisation  282 cross-border cooperation in civil and commercial matters  286 cultural patterns  281, 282 cyber-bullying and cyber-harassment  291 data collection  281 deprivation of liberty  282 direct effect  290 directive against violence against women and gender-based violence, proposal for a  290–1 Disabilities Convention  290 discrimination  280, 283, 287, 291 due diligence  279, 281 ECtHR  279 education and training  281 Equal Treatment Directive  287, 289 EU perspective  283–91 exclusive external competence  xiii, 285–6 harassment  287–9, 291 indirect effect  290 investigate and punish, duty to  279, 286 judicial cooperation in criminal matters  283–5 jurisdiction, establishing  282 legal aid and assistance  282 legal bases for EU’s signature and accession  xiii, 283–4 media  281, 291 migrants  282, 286

mixed agreement, as  xiii, 280, 284 monitoring implementation  282–3 passerelle clause  290 prevention  281–2 prevention-protection-prosecution approach  281 private and family life, right to respect for  279 sanctions deprivation of liberty  282 effectiveness, proportionality and dissuasiveness  282, 288–9 self-employment, directive on equal treatment for  287, 289 self-regulation  281 shelters and centres  281 signature  279–80, 283–4, 287 social patterns  281 soft law instruments  290 stereotyping  291 supply of goods and services, directive on equal treatment in access to and  287, 289 support services  281 telephone helplines  281 tradition  282 victims protection and support  281–3, 286 victimisation  282, 288–9 Italy see also Taricco II case (Italian Constitutional Court) austerity measures  262 Conseil d’État, links with  131 dual court systems  133 emergency relocation scheme  3–4, 6–8 fiscal policy rules  83 judicial dialogue  133–4, 135, 137, 142–3 preliminary rulings  133–4, 135, 137, 142–3 refugee crisis  3–8, 11–12 secrecy of judicial deliberations  101 Jacqué, Jean-Paul  39 Jafari case  17–18 Jägerskiöld v Gustafsson case  179 judicial dialogue see Ajos case, request sent by Supreme Court of Denmark in judge-rapporteur, role of  99–100, 108, 126 judiciary see also dissenting opinions activism  43, 150 brevity  202–3 Canons of Judicial Ethics (ABA)  104–5 cooperation  23–6, 28–9, 163, 167–9, 210, 283–5, 311, 318 European Arrest Warrant (EAW)  25–6 General Court, future of the  xi, 115–27 independence and impartiality  103, 105, 108–9, 201, 206–7, 211, 318 legal assistance  126–7 number of judges  vi, 119–20, 122–7

Index  373 President of Court of Justice, role of  119 removal of judges  114 jurisdiction Ajos case  146 allocation of jurisdiction  157–8 declining jurisdiction  118 expansion  111 General Court, future of the  118, 123–4 Istanbul Convention on Domestic Violence, EU accession to  282 limits  146 specialised courts  116 transfer of jurisdiction  xi, 120–4 Kadi II case  191–2, 195 Kainuun Liikenne Oy case  178–9 Keck and Mithouard  239–41 Keynes, John Maynard  87–8, 90–2, 94 Koskenniemi, Martti  333 Krugman, Paul  86, 88–9 Kundera, Milan  35 Lagrange, Maurice  130 languages  108, 235–7 League of Nations  322, 336 legal aid and assistance  282 legal bases Article 50 exit clause  350 external competence  295–6, 300–3, 307 Istanbul Convention on Domestic Violence, EU accession to  xiii, 283–4 refugee crisis  5–6 legal certainty age discrimination  153 citizens’ right to have rights  202 companies, cross-border mobility of  xii dissenting opinions of CJEU  103 free movement of goods  228, 244 Taricco II case (Italian Constitutional Court)  157–8 legal secretaries, role of  126–7 legitimate expectations  152–3, 357 lex posterior rule  150, 155–6 Liechtenstein  175 life expectancy  263–4 life of humans, animals or plants, protection of  231, 240 life, right to  275 Lisbon Treaty see also Article 50 exit clause (Lisbon Treaty) access to documents, right of  viii Charter of Fundamental Rights of the EU  155 Council vi–vii European Parliament  vi–vii, 36 external competence  297–8, 301–3 integration  36, 44 international agreements, conclusion of  vi–vii

national identity  35–6, 40–1 pillar structure, abolition of  350 Lithuania  133, 135, 137 Lugano Convention 1988  302 Luxembourg  102, 133, 135, 137 Maastricht Treaty see also Article 50 exit clause (TEU) citizenship  51–2, 58 Denmark  147–8 Economic and Monetary Union (EMU)  83 economic governance  83, 93 expulsion of member states from EU  327–32 free movement of goods  236 mutual trust principle  169, 172 national identity  35–6 no-bailout clause  83, 93 sovereign debt relief  76–7 suspension clause  327–8, 330, 332, 333, 336–7 travaux préparatoires  76–7 macroeconomics x, 84–6, 94 Madison, James  341–2 Malta  102 margin of appreciation  23, 77, 272 market discipline x, 83–5, 92–5 market liberalism  89 Marx, Karl  90 measures having an equivalent effect  228–31, 239–41 media Brexit  339, 345 distortion of traditional media  339 hostility to EU  345 Istanbul Convention on Domestic Violence, EU accession to  281, 291 social media, manipulation of  339–40 Melki case  37 mergers and conversions  219–20 migration see immigration minority rights  44 Minsky, Hyman  87–90, 92 mixed agreements Article 50 exit clause  356 EU Treaties  356 facultative mixed agreements  xiii, 294–5, 299–310 false mixity  299 Istanbul Convention on Domestic Violence, EU accession to  xiii, 280, 284 obligatory mixity  294–5 mobility of companies see cross-border mobility of companies monetarism  90 Monnet, Jean  146, 346 mutual assistance  313, 315 mutual recognition viii, 22–8 AFSJ x, 22–3, 25, 28, 163–70 civil matters, judgments in  23

374  Index European Arrest Warrant (EAW)  170 internal market  x, 22–4 mutual trust principle  x, 22–8, 32–3 Opinion 2/13  26–8 proportionality  23–4 Services Directive  23 mutual trust principle  21–34 see also mutual trust principle in area of freedom, security and justice (AFSJ) Ajos case  146 autonomy of EU law  22, 30, 32 Cassis de Dijon case  24 Charter of Fundamental Rights of the EU  26, 30–1 common values  27, 34 constitutional principle, as  21, 29 co-respondent mechanism  33 criminal justice system  26 ECHR, draft agreement on EU’s accession to  x, 21–2, 29–30, 32–3 ECtHR and ECJ through case law, loyal cooperation between  30–3 European Arrest Warrant (EAW)  25–6 evolution of principle  25–9 first stage  25–6 second stage  26–9 exceptional circumstances, notion of  30, 32 fundamental principle, as  x, 29 fundamental rights  26, 32 general principle of EU law  22–3 harmonisation  23–4, 27 integration viii internal market  x, 22–5 interpretation  28 judicial cooperation  23–6, 28–9 limits x, 23 loyalties  30–3 margin of appreciation  23 mutual recognition  x, 22–8, 32–3 necessity  23 Opinion 2/13  x, 21–2, 26–33 proportionality  23–4 public interest  23 rebuttable presumption, as  28 refugee crisis  11–12, 26, 30, 32 Services Directive  23 systemic deficiencies  30 Tampere European Council  22–4 mutual trust principle in area of freedom, security and justice (AFSJ) viii, 163–76 association agreements  173–5 Brexit  174–6 Charter of Fundamental Rights of the EU  165–6, 174

Common European Asylum System (CEAS)  164, 167–9 constitutional principle, as  viii corollaries xi–xii, 165–6 Court of Justice, case law of  164–73 criminal procedure, common standards of  xi–xii, 165, 169–72, 176 EU Treaties, basic structure of  165 European Arrest Warrants (EAWs)  166–71 Brexit  174–5 Denmark  171 enforcement  163–4, 171, 176 extradition  168 fair trial, right to a  166 free movement  166 independent judicial authorities  166–71 inhuman or degrading treatment  166, 172 Ireland  171 mutual recognition  170 prior authorisation  169 prosecutors, issued by  xi–xii, 168 September 11, 2001, terrorist attacks on United States  170 European Convention on Human Rights  163–6, 171–4 fundamental rights  xi–xii, 164, 167–72, 176 harmonisation  169–71 implying mutual trust  172–6 independent judicial authorities  xi–xii, 165, 166–71 inhuman or degrading treatment  166, 172 internal market  x, 22–5 judicial cooperation  25, 163, 167–9 justification of mutual trust  172–6 legal structure of  172–6 Lisbon Treaty  164, 170–1 Maastricht Treaty  169, 172 mutual recognition  x, 22–3, 25, 28, 163–71 Opinion 2/13  173–5 penitentiary systems, common EU standards on xii, 172, 176 Schengen area  174–5 third countries  xii, 173–5 national courts constitutional courts  x, 36–46, 75, 101–2, 106, 133 dissenting opinions of CJEU  101–2, 106–7 dual court systems  133 extradition  319 secrecy of deliberations  101 supreme courts  75, 101 national identity and EU law  35–50 citizenship  50 compositional constitutionalism  44

Index  375 conferral, principle of  36, 46 constitutional courts  x, 36–46 constitutional identity  38–40, 42–4, 46–7 constitutional patriotism  49–50 constitutional pluralism  37, 43, 46 constitutionality  38 conventionality  38 counterpoint law  44 culture  35, 44–5, 49 democracy  50 diversity  44 effectiveness  47 equivalent protection, principle of  49 European identity  35 free movement  xiii, 40–3, 49–50, 235–7 fundamental rights  40, 42–3, 46–7, 49–50 Furstin von Sayn-Wittgenstein case  42–3 geostrategic balances  45, 48 harmonisation  39 individuals, links to  x individuality and alterity, relationship between  35 integration x, 36, 44, 46, 49–50 interdependence between states  x inter-constitutionality  46 inter-normativity  46 legality of legislative acts  36 liquid modernity  45 Lisbon Treaty  35–6, 40–1 material legitimacy  39 Maastricht Treaty  35–6 Melki case  37 minority rights  44 multicentric legal systems  44 multiculturalism  44 multilevel structure  37 national identity, definition of  47–9 nationalism  48 ordained pluralism  46 political context  35, 44, 48–50 preliminary rulings  37 primacy of EU law  36, 40, 42, 44, 47, 49 procedural legitimacy  39 proportionality  36 public policy  39–43 regions  35 rule of law  42, 45, 50 Schmidberger test  39 sincere cooperation, principle of  36 social contract  44 sovereignty  36, 38–9 subsidiarity  35 tradition  45–6, 48–9 transformation of national identity  43–7 transparency  48

ultra vires  36, 46 unity of EU law  47 national security see confidential treatment of security-related material before General Court nationalism  48 nationality/citizenship  51–73 acquisition of nationality  x, 52–65 Amsterdam Treaty  65 arbitrariness  55–6, 60, 71–2 Article 50 exit clause  354 asylum and immigration law  66 birth, nationality by  58, 64 Brexit  60–1, 345 Charter of Fundamental Rights of the EU  52–3, 57, 63, 65 companies, cross-border mobility of  214 Court of Justice, case law of  51–2, 58–71 creation of EU citizenship status  51 criminal activities  55–6, 64–70 descent, citizenship by  57–8 discrimination  57–8, 62, 64–5, 312–14, 317 enjoyment of rights  65–71 enter and reside, right to  66–8 EU citizenship  52–3, 58–73 connecting factors  62 Court of Justice, case law of  51–2, 58–71 discrimination  62, 64–5 extradition  71 free movement of persons  52–3, 58–9, 62, 65–73 fundamental rights  68 integration  52, 61–2 ISIS operatives, brides and children, withdrawal from  65 national identity  50 reverse discrimination  62 statelessness  60 terrorism  65 with due regard rule  59 European Arrest Warrant (EAW), optional non-enforcement of  70–1 European Convention on Human Rights  53–71 discrimination  57–8 ECtHR case law on nationality  53–8, 65–71 enter and reside, right to  66–8 fair trial, right to a  54 private and family life, right to respect for  53–61, 65–9 right to nationality  53–4 European Convention on Nationality  60 expulsion x, 56, 61–2, 66–9 extradition  71, 312–14, 317, 319 family reunification  57–8, 63

376  Index free movement of persons  52–3, 58–9, 62, 65–73, 345 identity  50, 61 importance of citizenship  xiv, 312 integration  52, 61–2, 66, 68–71 international law, classical rules of  x, 65–7 loss of nationality  x, 52–70 arbitrariness  55–6 criminal activities  55–6, 64–70 procedural safeguards  55–6 statelessness  55–7 terrorist activities  55, 64–5 nationality, definition of  54, 68 naturalisation  54, 57–9, 62–5, 72–3 private and family life, right to respect for  53–61, 65–9 reciprocity of rights and duties  61 regulatory gap  51–2 renunciation of citizenship  54–5 residence rights  53, 55, 62–3, 65–71 revocation  55–8, 63–5, 71–2 right to nationality  53–4 rights, enjoyment of  65–73 social contract  61, 69 statelessness  55–7, 59–60, 64–5 subsidiarity  53 terrorism  55, 64–5 third country nationals  x, 53, 63, 66–8, 71 thought, conscience and religion, freedom of  57 Universal Declaration on Human Rights  60 withholding nationality  63, 65 naturalisation  54, 57–9, 62–5, 72–3 ne bis in idem  65, 317 Necessary and Proper Clause of TFEU  331 necessity  23 neoliberalism  261, 264, 273–4 Netherlands  94, 101, 132–3, 135 New Deal (United States)  90 new legal order, EC/EU as  149–51, 326–7, 349 Nice Treaty vi, 115–16, 118, 121–3, 328, 350 non-refoulement, principle of  9–10, 283–5 Nordic legal traditions viii Norway  175 nuclear proliferation  185 obiter dicta and ratio decidendi, difference between  104 OECD (Organisation for Economic Co-operation and Development)  263 OLAF (European Anti-Fraud Office)  114 Omega Spielhallen case vii Open Skies’ Agreement xii, 177, 180–1 opinions see dissenting opinions opt-outs  359–60 Organization of American States (OAS)  323–4, 336 Osborne, George  264–5

pacta sunt servanda  325 penitentiary systems, common EU standards on xii, 172, 176 per curiam judges  99–100 Pescatore, Pierre  347–8 Petruhhin case xiv, 312–15, 317 pillar structure, abolition of  350 piracy  313 Pisciotti case xiv, 312, 315–17 PMOI and PMOI II cases  190–2 Poland Charter of Fundamental Rights of the EU, opt-out from  359–60 citizens’ right to have rights  xii, 208–10 companies, cross-border mobility of  xii, 214, 220–4 dissenting opinions  102 dual court systems  133 free movement of persons  52 judicial dialogue  133, 135, 137 preliminary rulings  133, 135, 137 refugee crisis  7–8 Polbud judgment xii, 214, 215–24 politics Article 50 exit clause  347, 355, 359–60 dissenting opinions of CJEU  103 expulsion of member states from EU  321, 323, 328 extradition  311 General Court, future of the  112 international organisations, expulsion from  323 national identity  35, 44, 48–50 political parties opposed to EU, growth in  360 refugee crisis  x, 18 sovereign debt relief  75, 77 populism v, 91 Portugal austerity measures  262 dissenting opinions  102 dual court systems  133 judicial dialogue  133, 135, 137 national identity  47–8 preliminary rulings  133, 135, 137 sovereign debt crisis  85 poverty asylum seekers  267 children  265, 266–7 destitution  265, 267 employment as anti-poverty policy  267, 268 pensioners  265–6, 267 women  265–6 Praesidium  352 precautionary principle  233, 241 pre-emption, principle of  295, 309–10 preliminary rulings  177, 178–9 Ajos case  xi, 145–62

Index  377 number of preliminary references  vi uniform interpretation  107 primacy of EU law Article 50 exit clause  349 free movement of goods  234, 236 judicial dialogue  141 national identity  36, 40, 42, 44, 47, 49 private and family life, right to respect for Article 50 exit clause  357 austerity measures  271–2 Brexit  60–1 citizenship  53–61, 65–9 expulsion  66–7 Istanbul Convention on Domestic Violence, EU accession to  279 margin of appreciation  272 personal interests, rights characterised as  272 proportionality  272 resources  272 proportionality Ajos case  153 citizenship  56, 58, 67, 71–2 companies, cross-border mobility of  224 confidential treatment of security-related material before General Court  193, 195, 198–9 extradition  314 free movement of goods  xiii, 228, 232–3, 241–4 freedom of establishment  216, 223–4 Istanbul Convention on Domestic Violence, EU accession to  282, 288–9 mutual trust principle  23–4 national identity  36 nationality, loss of  56 private and family life, right to respect for  272 refugee crisis  6–9 religion in the workplace  249, 255, 257–9 public finances, sound and sustainable  238 public interest  23, 223, 228, 231–42, 244–5 public morality, public policy or public security  231, 233–4, 237–8, 240 public service obligations and fair competition  178–9 quantitative restrictions 228 see also measures having an equivalent effect Race Equality Directive  249 ratio decidendi and obiter dicta, difference between  104 Raugevicius case xiv, 312, 316–17 real seat theory  213, 218–20 rebus sic stantibus  325 refugee crisis and CJEU  3–19 access to justice  x, 12–16 annulment actions  5–9

asylum law, interpretation of  ix–x, 4, 10–18 central Mediterranean route  4 Charter of Fundamental Rights of the EU  8, 10–13, 18 CK case  11–12 Common European Asylum System (CEAS)  4, 12, 26 Council decisions  3–4, 5–10 criteria for protection  13 derogations  5–6, 8–9 Dublin system access to justice  12–13 discretionary clause in Dublin III Regulation  18 Dublin II Regulation  10–13, 16 Dublin III Regulation  3–4, 5–6, 11–14, 18 derogations  5–6, 17–18 inhuman or degrading treatment  11–13 irregular crossing criterion  3, 12–13, 17–18 mutual trust  11–12, 26, 30 primary responsible state  10–11 procedural rules  14 provisional measures  5–6 responsible member state, determination of  13 substantive rules  14 systemic deficiencies  11, 13 time limits  12–15 effective remedy, right to an  x, 13, 15 emergency relocation schemes  3–9 mandatory x, 3–9 temporary  3–4, 7 executive powers, abuse of exercise of  8 external dimension  3–4 fair sharing of responsibility  x, 8–9, 18 fundamental rights  11–12, 19 General Court  4, 5–10 Greece  3–4, 6–8, 11 emergency relocation scheme  3–4, 6–8 mandatory relocation scheme  6–8 systemic deficiencies  11, 30 temporary relocation schemes  3–4, 7–8 information, right to  13 inhuman or degrading treatment  11–13 internal dimension  3–4 interpretation ix–x, 4–6, 10–18 irregular crossing criterion  3, 12–13, 17–18 Italy  3–4, 6–8, 11–12 emergency relocation scheme  3–4, 6–8 mandatory relocation scheme  6–8 number of applications  12 systemic deficiencies  11 temporary relocation schemes  3–4, 7–8 Jafari case  17–18 judicial review of EU’s response to crisis  4, 5–10, 14

378  Index legal basis  5–6 mandatory relocation scheme  x, 3–9 1:1 resettlement scheme  4 annulment actions  5–9 legal basis  5–6 mutual trust  11–12, 26, 30, 32 NF, NG and NM v Council  4, 5, 9–11, 26, 32 non-refoulement, principle of  9–10 number of applications  12 political pressures  x, 18 primary responsible state  10–11 proportionality  6–9 provisional measures  5–6, 8–9, 18 quotas  3–9 relocation schemes  3–9 mandatory  3–9 voluntary  3–4 resources of a technical and financial nature  8 responsible member state, determination of  13 retrospectivity  7 rule of law  x, 18–19 Schengen Borders Code  17–18 secondary movements towards Northern Europe  3, 12 separation of powers  18 Slovakia and Hungary v Council  4, 5–9 solidarity principle  8–9, 12, 17–19 Syrian refugees  3, 4 systemic deficiencies  11, 13, 30 temporary relocation schemes  3–4, 7–8 time limits  12–15 Turkey-EU Statement on migrant flows  x, 3–4, 5, 9–11, 26, 32 1:1 resettlement scheme  4 Heads of States or governments, as attributable to  5, 9–10 international agreement, as  5 NF, NG and NM v Council  4, 5, 9–11, 26, 32 preparatory documents  9–10 UN Vulnerability Criteria  4 urgency x, 3–9 wave-through policy  12 western Balkans route  4, 17 registered offices  213–24 rehabilitation of offenders  317 religion 282 see also religion in the workplace religion in the workplace  247–60 access to employment, self-employment or occupation  250 ADDH xiii, 251–7, 259–60 Advocates General opinions  252–7 balancing religious freedom with employer’s right to neutrality  xiii, 247, 249–60 clothing  248, 251–7, 258–60

customer prejudice  256 discrimination xiii, 247–60 Charter of Fundamental Rights of the EU  251 direct  249–51, 253–4, 257 Equality Framework Directive  249–50 harassment  287–8 indirect  249–51, 253–7, 259 legitimate aims  253–4, 258 neutrality xiii, 247, 249, 251–60 proportionality  249, 255, 257 results of treatment  251 verification of justifications  256 dismissals  250, 252–7 dress codes  252 effet utile  253 Egenberger xiii, 257–60 enforce a particular religious ethos, right to  xiii, 257–9 Equal Pay Directive  249 Equal Treatment Directive  249 Equality Framework Directive  249–50, 253, 257 G4S Secure Solutions case  xiii, 251–7, 259–60 genuine occupational requirements  250–1, 257–9 inconsistencies in case law  xiii IR v JQ case  xiii, 258–60 Islamic headscarf cases  251–7, 258–60 laïcité  252 legitimate aims  253–4 mandatory religious requirements and optional religious requirements  255 manifestation of religion  248, 251–60 neutrality xiii, 247, 249, 251–60 discrimination, as  xiii, 247, 249, 251–60 legitimate aims  249 not to practice religion, right  xiii overt observance as a norm  248 pay  249–50 persecution, examples of  248 private, manifestation in  248 proportionality  249, 255, 257–9 Race Equality Directive  249 recruitment and selection  250 religion, definition of  253 secularism  248, 252 symbols  252 thought, conscience and religion, freedom of  251 ‘veil’ cases  251–7, 258–60 working conditions  250 reside, right to  53, 55, 62–3, 65–71 citizenship  53, 55, 62–3, 65–71 expulsion  68–9 extradition  313–14 integration, proof of  71

Index  379 length of residence  71 private and family life, right to respect for  66–8 resources  119–20, 127, 272, 275–6, 281 retrospectivity  7, 157 Roberts, John  105 Romania  102 Rome Treaty 1957  347–8, 360 Roosevelt, Franklin D  90 Rosas, Allan v–ix, 75, 161–2 Åbo Akademi University, Turku  51, 129, 339 career  v–vi, ix Commission xii, 177–81, 261 Ruiz Zambrano case  202–6 rule of law v–vi Brexit  354 citizenship  52, 205–12 confidential treatment of security-related material before General Court  185, 187 duty to protect  205–8 economic governance  91 expulsion of member states from EU  335 free movement of goods  228 inalienability xii, 210 income equality  91 international law obligations  vii judicial dialogue  130 national identity  42, 45, 50 preliminary rulings  130 refugee crisis  x, 18–19 social justice  91 threats v transnational dimension  45 rule of reason  229, 231 Schengen regime  17–18, 147, 174–5, 350 Schmidberger test  39 Schuman, Robert  342 Schumpeter, Joseph  90 Scotland  345, 357–9 seats, transfer of company  213 secularism  248, 252 security see confidential treatment of securityrelated material before General Court Security Council resolutions (UN)  185–6 self-employment, directive on equal treatment for  287, 289 self-regulation  281 separation of powers  18, 113 September 11, 2001, terrorist attacks on United States  170 Services Directive  23 SEVIC Systems case  219–20 Simma, Bruno  333 sincere cooperation, duty of  36, 151, 315

single market see internal market Singh, Nagendra  323 Slovakia and Hungary v Council  4, 5–9 social contract  44, 61, 69, 268 social Darwinism  89 social justice  91–2, 227, 268 social security benefits austerity measures  264–5, 267, 271–2 free movement of goods  238–9 proper functioning  238–9 regressive changes  265 simplification of system  267 solidarity  8–9, 12, 17–19, 77, 104 South Africa  274, 323–4 sovereign debt relief and EU law  75–82 budgetary policy, soundness of  76–8, 80–1 commitments  76–80 conditionality x, 76–7, 80–2 constitutional courts  75 Court of Justice, case law of  x, 75–82 debt restructuring/re-profiling  75 EU Treaties  75–82 European Central Bank (ECB)  80 European Financial Stability Facility (EFSF)  79 European Stability Mechanism (ESM)  76, 78, 79, 81 financial assistance under EU law  x, 76–9, 81 forgiveness, prohibition on  79 haircuts  80–1 legitimacy  76 limits x, 75–82 Maastricht Treaty  76–7 margin of appreciation  77 market discipline  x, 76–82, 85 moral hazard  80–1 no-bailout clauses  76, 81 official debt relief  75–6, 81 politics  75, 77 solidarity  77 supreme courts  75 voluntary assumption of liability  76–8 sovereignty see state sovereignty Spain austerity measures  262 Catalonia  48 dissenting opinions  102 judicial dialogue  132 preliminary rulings  132 special advocates  189 specialised courts  115–16, 118–19, 122–3, 126 Stability and Growth Pact (SGP)  83–4, 93, 350 state responsibility  333 state security see confidential treatment of securityrelated material before General Court

380  Index state sovereignty Brexit xiv, 340–3, 346 citizenship  52 constitutional courts  36 extradition  311 national identity  36, 38–9 statelessness  55–7, 59–60, 64–5 structural adjustments  273 subprime mortgage market  85 subsidiarity  35, 53 supply of goods and services, directive on equal treatment in access to and  287, 289 supremacy of EU law see primacy of EU law supreme courts  75, 101 see also judicial dialogue between national supreme administrative courts and CJEU in preliminary ruling procedures Sweden viii, 3, 12, 94, 102, 132–3, 135, 137 Switzerland  175 systemic deficiencies  30, 205, 206–7, 212 Tanzania vii Taricco II case (Italian Constitutional Court) xi, 145–6, 155–9 allocation of jurisdiction  157–8 Charter of Fundamental Rights of the EU  157 Constitution  156–7 controlimiti doctrine  146, 156–7 historical context  155–6 lex posterior rule  155–6 limitation periods  157 MAS case  156–9 Melloni case  158–9 retrospectivity  157 taxes x, 83–4, 93–5, 265 terrorism  55, 64–5, 170, 188–9, 192, 199, 311 Thatcher, Margaret  264 thought, conscience and religion, freedom of  57, 251 transparency viii, 43–7, 103, 106–8 treaties and conventions see also conclusion of international agreements and non-exclusive external competence; EU Treaties Common Foreign and Security Policy (CFSP)  vii conclusion of international agreements  vi–vii democracy vii international organisations, expulsion from  324–5 rebus sic stantibus  325 Vienna Convention on the Law of Treaties  324–6 trust see mutual trust principle Turkey-EU Statement on migrant flows x, 3–4, 5, 9–11, 26, 32

Überseering case  216–19 ultra vires  36, 46, 141, 147–8 United Kingdom see also austerity measures and human rights in UK; Brexit Charter of Fundamental Rights of the EU, opt-out from  359–60 citizenship  60–1, 64 dissenting opinions  99, 105–6 individualistic approach  99 number of participating judges  105–6 Economic and Monetary Union (EMU), opt-out from  359 enlargement  108 national identity  47 United Nations (UN)  323–4 United States austerity measures  268 Canons of Judicial Ethics (ABA)  104–5 dissenting opinions in the Supreme Court  104–6 conservative judges  104 liberal judges  104 unanimity  104 extradition agreement with EU on  313, 315–16 mutual legal assistance, agreement on  313 Federal Reserve  86 Glass-Steagall Act  90 Greenspan Put  86 harassment  288 institutions, comparison with EU  341–2 New Deal (United States)  90 Open Skies’ Agreement  xii, 177, 180 populism  91 September 11, 2001, terrorist attacks on United States  170 sovereign debt crisis  85 subprime mortgage market  85 unity of EU law  47 Universal Declaration of Human Rights (UDHR)  60 Universal Postal Union (UPU), South Africa’s expulsion from  323–4 USSR  336 VALE case  219–20, 222 values austerity measures  268 core values, breach of  327–8, 330 expulsion of member states from EU  327–8, 330 free movement of goods  228, 235–7 fundamental rights  vii serious and persistent breaches of core values  327–8, 330 Van Gend en Loos case  349 ‘veil’ cases  251–7, 258–60

Index  381 victims of domestic violence legal aid and assistance  282 protection and support  281–3, 286 rights  282 victimisation  282, 288–9 Vienna Convention on the Law of Treaties (VLCT) Article 50 exit clause  352 consent to be bound  325 customary international law  325 fundamental change of circumstances doctrine  325–6 international organisations, expulsion from  324–6 pacta sunt servanda  325 rebus sic stantibus  325

Warren, Earl  54 welfare benefits see social security benefits women see Istanbul Convention (Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence), EU’s accession to; women, impact of austerity measures on women, impact of austerity measures on  265–6 part-time work  266 poverty  265–6 single female pensioners  265–6 single parents  266, 268 Zambrano case  202–6

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