The CJEU secures asylum seekers' right to family housing

Steve Peers

What obligations do Member States have to ensure that asylum-seeking families are housed adequately? The Court of Justice of the European Union (CJEU) has today usefully clarified the minimum standards which Member States must observe on this issue, in its judgment in Saciri. This judgment is a welcome confirmation that whatever the practical difficulties facing Member States in managing their reception for asylum-seekers, families cannot simply be left homeless or forced to live in grossly inadequate conditions by means of the refusal of support for financial assistance to obtain housing.

Judgment

The case concerns a family of asylum-seekers (two parents and three children) who needed accommodation in Belgium while their asylum application was being considered. The Belgian agency responsible for reception of asylum-seekers replied that it could not provide reception, and referred them to the social assistance agency. Since the Saciri family could not pay the rent being charged for private properties, they asked the social assistance agency for financial support.

But there was a 'Catch-22': the agency refused to give them support, since the family was not living in accommodation provided for by the reception agency - even though the reception agency had told them that it could not help them. A lower court in Belgium ruled that the reception agency had to pay them financial support, and that agency appealed to the referring court, which asked the CJEU questions about the EU's first-phase reception conditions Directive.

First of all, the CJEU pointed out that the Directive allows for support for asylum-seekers either in kind (ie providing housing directly) or by providing financial allowances. Then it confirmed its prior case law (Cimade and GISTI) to the effect that benefits must be provided as soon as the asylum application is made, in particular in light of the right to human dignity set out in the EU Charter of Fundamental Rights.

Next, as for the amount of the financial allowances, regardless of how the aid is provided, the Directive states that it must ensure a dignified standard of living for applicants' health, as well as subsistence. Member States must also, according to the Directive, take account of those with special needs (including minors), entailing a requirement to preserve family unity as well as the best interests of the child. The CJEU confirmed that these principles meant that applicants must be able to obtain housing on the private market if necessary, although this did not mean that asylum-seekers could make their own choice of housing.

The CJEU then ruled that, although the specific rules in the Directive relating to housing only apply where the housing is provided in kind by Member States, it still followed that any allowances provided to assist with housing had to ensure the unity of the family.

Finally, the Court ruled that where accommodation facilities are overloaded, it was open to Member States to refer asylum-seekers to the authorities responsible for public assistance, provided that the latter authorities ensure that the minimum standards in the Directive are met.

The Court concluded by noting that 'saturation of the reception networks [is not] a justification for any derogation from meeting' the standards in the Directive.

Comments

The CJEU's judgment neatly addresses the 'Catch-22' created by national law, which to some extent reflects the structure of the Directive. On the one hand, the Directive lays out general rules on reception support, but then on the other hand, it only lays out detailed rules as regards housing where the State provides such housing in kind. What if the State does not, or cannot, provide for housing in kind?

The Court's answer to this question takes account of the definition of 'material reception conditions' in the Directive, which expressly includes 'housing'. So it logically follows that such material support must include assistance to obtain housing, where no housing is provided for in kind.

Moreover, it is expressly clear from the Court's judgment that a family of asylum-seekers is entitled to support to obtain family housing on the private market, although the Court does recognise that the asylum-seekers do not have a fully free choice of where they may be housed. This necessarily means that, if there is no publicly-provided accommodation available, the authorities must ensure that a family of asylum-seekers has enough support to afford to rent a property at market rates, which is big enough to house their family in dignity. But the house need not be palatial. Probably this means that a family of five cannot demand enough financial support to rent a four-bedroom house; but neither can they all be expected to sleep on the same sofa.

The Court's answer to these questions was not affected by the overloading of the Member State's reception system. This had practical consequences, in that asylum-seekers can be referred to the social assistance agency instead of the reception agency, and be provided with a financial allowance instead of housing in kind. But the basic obligation to provide enough assistance to ensure a minimum dignified level of accommodation, including family unity, cannot be derogated from.

Finally, it should be noted that the judgment takes a stronger approach to family unity than the wording of the Directive, which states only that family unity shall be ensured 'as far as possible', and only where Member States provide for accommodation in kind. The Court's judgment means instead that families of asylum-seekers must be able to live together in all cases, if necessary in private accommodation, even if this means some additional cost or administrative inconvenience for Member States. This can only be welcomed, as it is an essential step to ensure the protection of the family life of some of the most vulnerable people in the European Union.


Barnard & Peers: chapter 26

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Non-EU benefit claimants and implications for the EU's relations with Switzerland

Steve Peers

Even the most xenophobic of British tabloids is unlikely to greet today's judgment of the Court of Justice of the European Union (CJEU) with the headline, 'Scrounging Swiss'. Yet the judgment, concerning the correct legal base of an EU measure extending revised social security rules to Swiss citizens, raises interesting questions concerning the extension of social security rules to third states in general, and on the EU's relations with Switzerland in particular.

Background

This the second in a series of three cases (to date) in which the UK has challenged the 'legal base' of Council Decisions which establish the EU's position as regards the extension of revised EU rules on social security coordination to particular third countries. The first case (C-431/11, UK v Council) concerned the European Economic Area (EEA), a treaty extending the EU's internal market to Norway, Iceland and Liechtenstein. The UK lost that challenge in September 2013. This case (C-656/11, UK v Council) concerns the extension of those social security rules to Switzerland, pursuant to the EU's free movement agreement with that country. A third case, still pending (C-83/13, UK v Council) concerns the extension of those rules to Turkey.

In all these cases, the Council has taken the view that the correct 'legal base' for its decision is Article 48 TFEU, which concerns the coordination of social security for employed and self-employed workers within the EU. Since the Treaty of Lisbon, this has provided for a qualified majority vote, although a Member State can pull an 'emergency brake' on proposed legislation if it believes that 'important aspects' or the 'financial balance' of its social security system will be affected by the proposal in question. The UK, on the other hand, has argued that the correct 'legal base' for these measures is Article 79 TFEU, which concerns the EU's common immigration policy.

This provision gives the UK (along with Ireland and Denmark) an opt-out. The UK intended to use this opt-out to reduce the cost of the provision of foreign benefits, although the total amount of the benefits paid out is surely not enormous. It may even be less than the cost of bringing this litigation.

It should be noted that the Council has taken a number of other decisions regarding social security rules for associated countries, based on Article 79 TFEU as the UK has advocated. In the Commission's view, set out in an interesting communication on social security and third countries, Article 48 should be used where the EU has a particularly close association with the country concerned, but otherwise Article 79 should be used.

Judgment

In the previous judgment concerning the EEA, the Court ruled that Article 48 TFEU had to be used because: the EEA was a particularly close association between the EU and the countries concerned; the decision aimed to extend the whole EU internal market to those countries; the relevant provisions of the TFEU and EEA treaty were the same; the EEA has particular rules on the legal effect of EEA law; the decision also applied to EU citizens in the third countries concerned; the decision merely updated prior commitments; and it would be difficult to ensure free movement in the event of parallel regimes. Article 79 TFEU could not be used, because it was 'manifestly irreconcilable' with the context and objectives of the EEA.

Most of those points were unique to the EEA, and so the UK had hoped that the previous judgment could be confined to its facts. However, the CJEU extended this case law to cover the EU/Swiss decision as well. It reasons were that: Switzerland has a 'vast' number of treaties with the EU which aim to strengthen the EU/Swiss economic relationship, even though the Swiss had voted not to participate in the EU internal market, via means of the EEA; the EU/Swiss treaty has the same wording as Article 48 TFEU; and the decision simply extends the revised EU rules to the third country concerned. 

The CJEU also ruled that Article 48 TFEU can apply to third-country nationals where an association agreement (which was the basis for the approval for the 'package' of seven EU agreements with Switzerland, in 1999) has already extended EU social security rules to the country concerned, and the decision in question merely aims to update the references concerned. Finally, the CJEU rejected the UK's argument that Article 48 could not apply to the rules on social security for those Swiss citizens not exercising economic activities (who are outside the scope of Article 48), on the grounds that this aspect of the new decision was purely ancillary to the rules on employed and self-employed persons.

So Article 48 TFEU can apply even if the relationship is not as special as the EEA, does not extend the full internal market to the country concerned, and does not contain the particular rules on the legal effect of EEA law. The most recent judgment makes no reference to the complication of having parallel regimes either. Moreover, the UK's best argument - that third country nationals not exercising economic activities were beyond the scope of Article 48 TFEU - has now been shot down by the Court.

It is surely likely, by analogy with this judgment, that the UK will lose its challenge to the Council decision regarding social security for Turkish citizens. Moreover, the Coumcil's decisions relating to social security for other associated third countries, based on Article 79, might even be legally questionable. This is because the Court's judgment today could be understood to mean that the implementation of any specific aspects of the EU's association agreements involve the use of the relevant legal base relating to internal EU law - given that, as the CJEU has always held, all association agreements aim to extend aspects of the EU's internal law to the third country concerned (Case 12/86 Demirel).

Broader implications

The CJEU makes no reference to the recent Swiss referendum, which established a legal requirement for the Swiss government to renegotiate the free movement treaty with the EU within three years, to establish a possible quota on free movement. Of course, the judgment does not concern termination of the EU's treaties with Switzerland, but rather their implementation. But it implicitly rejects any argument that the Treaty provisions on association agreements (now Article 217 TFEU) must always be used for decisions relating to such agreements. The Advocate-General's opinion in the previous EEA social security case had argued that Article 217 had to be used, but the Court did not follow that view.

It is therefore arguable that the EU could decide to denounce one or all of the other treaties in the 1999 package based on the particular legal base for the treaty concerned - such as the transport legal base for the treaty on aviation, for instance. If this is correct, most or all of these decisions to denounce could be taken by a qualified majority vote, so this would strengthen the EU's negotiating position with Switzerland when it comes time to renegotiate the main treaty on free movement of persons. It cannot be forgotten that the EU and the Swiss agreed in 1999 that the seven agreements were a package - and that the denunciation of one treaty would mean the denunciation of all of them.


Barnard & Peers: chapter 24

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Counterfeiting the euro: The EU legislature applies the principle of ineffectiveness

Steve Peers

In some of its key judgments concerning EU criminal law, most notably Pupino and its judgments on the legal base for environmental crime legislation, the Court of Justice of the European Union (CJEU) has attempted to strengthen the principle of effectiveness in this area. However, the EU legislature has recently agreed on a new Directive on counterfeiting the euro, which could only be described as an application of the principle of ineffectiveness.

Background

The issue of counterfeiting the euro is currently addressed by a number of measures, most notably a pre-Lisbon measure, a Framework Decision forming part of the previous 'third pillar', which dates from 2000. This Framework Decision sets out substantive criminal law rules regarding counterfeiting currencies, including the euro. It requires Member States to define as a criminal offence the fraudulent making or altering of currency, as well as a number of similar offences.

The various offences must be 'punishable by effective, proportionate and dissuasive criminal penalties, including penalties involving deprivation of liberty which can give rise to extradition'. More precisely, the offence of fraudulent making or altering of currency must be punishable by a possible maximum penalty of at least eight years. This was the first time the EU had included a rule on sentencing in its substantive criminal law legislation, and most such EU measures adopted since have included further sentencing rules.

The new Directive

In its proposal for a Directive to replace the Framework Decision, the Commission again hoped to break new ground: it suggested that for the first time, EU legislation should establish a minimum sentence for certain crimes. In this case, there would be a minimum penalty of at least six months' imprisonment for certain offences of counterfeiting currency, if at least €10,000 was involved.

The Commission's rationale for this proposal was that many Member States had provided for no minimum sanctions, or only for fines as a penalty as regards counterfeiting currency, therefore increasing the incentive for counterfeiters to 'forum-shop' for a jurisdiction which would treat them quite leniently if they were caught. At p 13 of its impact assessment, the Commission offers convincing evidence that this is taking place. In four Member States with no minimum sanctions, or fines as minimum sanctions, there were 343 cases of illegal printeries dismantled from 2002-2011 (86 cases/Member State). In eleven Member States which provide for at least six months' imprisonment for counterfeiting currency, there were only 179 such cases during the same period (16 cases/Member State). This discrepancy isn't due to the size of Member States, since there was only one large Member State in the first category, and three large Member States in the second. As the Commission suggests, 'these figures seem to suggest that Member States with low levels of sanctions tend to attract counterfeiters'.

However, the European Parliament (EP) and the Council were not willing to accept the Commission's proposal on this point. The final agreed Directive only provides for the current eight year possible maximum sentence for fraudulent making or altering of currency, adding a five year possible maximum sentence for related crimes. But there is no provision on minimum criminal sanctions.

On the other hand, two other innovations proposed by the Commission were accepted. First of all, Member States will have to provide for 'effective investigative tools', such as interception and undercover agents, as regards counterfeiting currency. This will prevent investigations being dropped due to the lack of such techniques being available (for an example of this happening in practice, see p. 16 of the impact assessment). Secondly, Member States will have to allow identification of counterfeits while criminal proceedings are underway. This will speed up the process of ensuring that the bogus currency created from the illegal printing press is rejected (for an example of bogus €500 notes being accepted because there was no early access to the counterfeits, see p. 18 of the impact assessment). The European Parliament also insisted upon a new clause requiring the Commission to collect information on the numbers of prosecutions.

The adoption of the Directive will continue the process of replacing pre-Lisbon third pillar acts with ordinary EU legislation (four other Framework Decisions have been replaced by Directives to date). However, since the end of the transitional period relating to pre-Lisbon third pillar acts is nigh (the usual rules on infringement actions and references from national courts will apply from 1 December 2014), this does not matter very much in practice.

The Directive will not apply to the UK and Denmark, matching precisely the opt-out rules relating to the single currency (all other non-eurozone Member States must adopt the euro in principle).  While the Framework Decision will still apply to those countries for now, the UK has decided to opt out of it (without applying to opt back in) as from 1 December this year. In the hypothetical event that the UK then decriminalises the counterfeiting of the euro on its territory, that would arguably be a breach of the principle of 'sincere cooperation' in EU law.

Comments

One wonders why the EU legislature puts such store by the Commission producing comprehensive impact assessments, and then ignores the evidence set out in them. It is true that a minimum criminal sentence might be at odds with some Member States' criminal law systems, which the Treaty rightly requires the EU to respect. However, the best way to address this legitimate concern is to provide for an exception for those Member States in the relevant legislation .

While there are generally good reasons, on grounds of subsidiarity and such respects for national systems, for the EU not to interfere with the basic principles of national sentencing systems, the case of counterfeiting the euro is special. (So is the issue of protection of the EU's financial interests, where the Commission has proposed to interfere with national rules on prescription for the first time.) Any counterfeiting of the EU's single currency necessarily impacts on all the Member States using it, as well as (less directly) the Member States which are required to use it in future. The EU legislature's choice to apply the principle of ineffectiveness in this new legislation is therefore regrettable.


Barnard & Peers: chapter 25

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Is the European Union an ideal worth dying for? Thoughts on the future of Ukraine and the EU

Steve Peers

Undoubtedly there were many reasons to find fault with the Yanukovych government of Ukraine, but the catalyst for start of the protests which ultimately brought his government down was his refusal to sign an association agreement with the European Union. Some of the protesters killed last week were even flying the Union flag. Let's assume that fresh elections are held, as planned, in the near future (on the same day as the European Parliament elections) and result in a pro-European government. In that case, this apparently strong enthusiasm of a proportion of the Ukrainian population for joining the European Union will raise fundamental questions about the Union's future.

The initial steps following the election will be relatively easy. First of all, the association agreement will be quickly signed and ratified. This treaty goes much further to link Ukraine to the EU's legal order than the prior Europe Agreements (with Central and European countries) did, and the current Stabilisation and Association Agreements (with the Western Balkans) do. In particular, it contains an enormous list of specific EU laws which Ukraine must comply with by certain dates.

Another potential 'early harvest', which would be very popular with the Ukrainian population, would be the abolition of the visa requirement for Ukrainians to visit the EU. There is already a process to this end set up between the EU and Ukraine, and it could certainly result in a successful result in the near future if there is enough effort on the Ukrainian side - as the examples of the Western Balkans and Moldova prove. Various other treaties on specific issues could also be agreed between the EU and Ukraine. Yet I doubt if this will be enough.

The Copenhagen and Thessaloniki declarations, which set out the EU's clear willingness to admit the countries of (respectively) Central and Eastern Europe and the Western Balkans if the relevant conditions are met, have formed the core of the EU's relations with the countries concerned since their adoption. The realistic promise of EU membership for these countries formed the basis of broad and stable political support for widespread economic and political reform.Of course, in some cases, the promise of possible EU accession is not enough to overcome a country's manifold problems, as the example of Bosnia and Hercegovina shows. But it is hard to see how that country would be better off without that promise.

Indeed, the recent history of Ukraine arguably shows that the absence of a commitment by the Union to admit the relevant country in principle potentially weakens the pro-reform forces politically. Following the Orange Revolution of 2004, the EU would not commit to possible enlargement, suggesting instead the close association agreement which has since been negotiated, and pro-reform forces faced difficulties ever since. Of course, the EU's lack of enthusiasm for Ukrainian membership cannot have been the only reason for those difficulties. But again, the pro-reform forces would surely have been better off if that commitment had been made. You cannot build broad and stable political support for widespread economic and political reform around the goal of EU membership when the EU palpably doesn't want your country to join.

So this time, should the EU make a genuine commitment to admit Ukraine if the conditions are right? On the one hand, Ukraine fits the geographic criteria for membership, and has various historical, cultural and linguistic links with current Member States. It's very diverse, and its borders are historically arbitrary, but the same could be said of other Member States (and non-Member States too). If the political and economic circumstances there change, the potential accession process could always be put on hold for as long as necessary, as it has been in Bosnia and Hercegovina. Its accession would be of major strategic importance for the EU, significantly limiting Russia's sphere of influence in Europe.

On the other hand, the Union's elites and its population clearly have 'enlargement fatigue', and Ukraine is bigger, poorer and potentially more volatile than most of the countries which have joined in recent years. The weeks leading up to a European Parliament election are not an ideal time for politicians to consider making such a brave political commitment.

How can these conflicting considerations be reconciled? The Union has gone as far as it can in terms of developing a close association with Ukraine, in the form of the association agreement which will likely soon be signed. More protocols could be added to this treaty, but that would miss the point: pro-reform forces in Ukraine need a concrete commitment to EU membership as an anchor to build broad support for a significant programme of political and economic reform.

What the Union needs, then, is not a new form of association: it is very good at coming up with them, but that won't be sufficient in this case. What it needs instead is a new form of membership. Let's call it 'associate membership' (although that term is bound to be confused in practice with mere association) for convenience's sake.

An associate member would be legally a member of the EU, with many of the rights and obligations of EU membership, but not all of them. For instance, addressing one of the biggest public concerns in current EU Member States, the free movement of people would not fully apply. This is different from the transitional period for free movement of workers that has applied to many EU enlargements, in that there would be no fixed end date for the limitations concerned. Indeed, there would be no legal commitment to admit the country concerned as a full member of the EU, leaving that possibility subject to the current system for agreeing accession of new Member States.

This new possibility need not be confined to Ukraine: it could also be used for Western Balkan states, Turkey and other eastern neighbourhood countries. Indeed, it could also be used for existing Member States which may wish to scale back their current degree of membership in the EU without leaving it altogether. The United Kingdom would be the most obvious candidate for such a change of status, participating perhaps in a 'common market' version of associate membership.

Of course, the associate members could not expect to vote on EU measures which did not apply to them yet (again differentiating them from new full Member States), including any Treaty amendments that did not apply to them. Difficult issues would arise as regards their participation in EU institutions, but these could surely be solved if the political will were present.

Undeniably, this new form of EU membership could only be introduced by way of Treaty amendment, and many Member States dread starting the Treaty amendment process. But, if the political will were there, it would need only a minor amendment to the Treaties to provide for the existence of the new concept, with the details to be worked out in the treaties with the countries concerned, supplemented perhaps by a general legal framework governing the new form of EU membership (to be adopted by the Council or European Council by unanimity, with the consent of the European Parliament). This Treaty amendment could be severed from other possible Treaty amendment issues, reducing the political difficulties in negotiating and ratifying Treaty changes.

Back in 1989, the European Union responded quickly and fully to the end of the Cold War, putting in place a framework for enlargement that ultimately led to the reunification of much of the continent within the EU's legal order. The passion and enthusiasm of pro-European Ukrainians, as well as the Union's need to think creatively about ways to address its relative decline of influence in regional politics, suggest that the time is ripe to create a new form of membership in the European Union.


Barnard & Peers: chapter 2, chapter 24

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Is the UK's restriction on EU workers' access to benefits legal - and if not, should it be?

Steve Peers

Today the UK government has announced a new threshold for determining whether an EU citizen from another Member State is actually a 'worker' or not, for the purposes of claiming benefits. Are these rules compatible with EU law on the free movement of workers? And if not, should EU law be changed so that they are?

According to the new UK rules, to obtain 'worker' status, citizens from other Member States will have to earn £150/week for at least three months. If they manage this, then they will have access to child benefit, child tax credit, job-seekers' allowance and housing benefit. If not, then they will not be automatically denied benefits; rather their position will be subject to a case-by-case analysis.

Is this a violation of EU law? In a series of cases dating from the 1980s, the Court of Justice of the European Union (CJEU) clarifed the meaning of 'worker' for the purposes of the EU Treaties, which provide for the free movement of workers. This case law clarified that a person must be considered to be a 'worker' even if he or she works part-time, as long as the work is 'genuine and effective' and not 'marginal or ancillary'. In particular, an EU citizen claiming top-up benefits might still be considered a 'worker' (Kempf). However, there is no hard-and-fast rule in this case law determining what it takes to be an EU worker.

At first sight, the new UK rules appear to set such a hard-and-fast rule, which conflicts with the case law of the CJEU. It is certain, in light of its prior case law, that the CJEU would hold that at least some people earning an average of less than £150/week for three months were workers. It is even more certain that the CJEU would condemn the rule if it requires the worker to earn more than that amount every week for that period, rather than an average - but it is not clear if the rule goes that far.

 However, the new British rule is not as strict as that. Instead, it appears to create (at most) a rebuttable presumption that the persons earning less than that amount are not workers. Its compatibility with the free movement of workers therefore depends largely on how it is actually applied to individual situations, which might in part depend on the policy guidance which will presumably be issued by the government to the civil servants who apply it. The crucial point should be how exactly the presumption (is that is what it will be) can be rebutted.

So the answer to the first question posed above is: It depends on how the law is applied in practice. That's not a very satisfactory answer, perhaps, but it is often the only honest answer to a legal question. Having said that, it might still be worth challenging the new rules for their compatibility with EU law, via the national courts and by means of complaints to the Commission, to obtain some further clarification of the EU definition of 'worker'.

Should the EU rules on benefits for EU citizens be changed?

This brings us to the second question: Should the rules be changed? Of course, this is a political question, but it has a legal context. Since the rules are closely related to the interpretation of the concept of 'worker', a term set out in the EU Treaties, it would take a treaty amendment to change them. Such a treaty amendment would need the approval of all 28 Member States (or perhaps 29, if Alex Salmond's dreams come true).

In the normal course of events, it is unlikely that all Member States would agree to a Treaty change that would negatively affect their citizens who have moved to other Member States and taken up low-paid work. However, it is just about conceivable that they would be willing to negotiate a limited clarification on workers' access to benefits in the context of a UK bid to renegotiate the terms of its UK membership. Perhaps this change could even apply across the board, to all Member States: it would probably be welcome in some other Member States, and it might even increase public support for further EU enlargement.

It might be argued that any restriction on the established rights of EU workers is unthinkable. But consider the alternative: if the UK were asking to renegotiate its EU membership, that would mean that a Conservative government had won a majority (or very close to a majority) in the 2015 UK general election. That government would be demanding a change in the UK's EU obligations, otherwise it would lead the UK out of the EU. And that would, of course, remove any rights for EU citizens at all in the UK - subject to whatever (doubtless more limited) rights were agreed as part of the UK's hypothetical future association agreement with the EU. Moreover, a modest restriction on the benefits which low-paid workers could receive would be much a less significant restriction on free movement rights than the demand of some critics of EU membership - that the UK should be able to set a quota on the numbers of EU citizens moving to the country. Could it be time to think the unthinkable?


Barnard & Peers: chapter 13

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The EU’s common rules on detention: how serious are Member States about protecting fundamental rights?

By Debbie Sayers, Legal Research Consultant, http://interalia.org.uk

On 5 February 2014, the Commission published a damning report on its ‘common rules on detention’ confirming that, at best, only 18 of 28 Member States have implemented any of the instruments. This is a quantitative not qualitative study: there has been no evaluation of how well these rules have been applied or whether they have improved the lot of individuals.

The poor level of implementation of these very basic commitments to improve the rights of detainees is of concern. Every year, tens of thousands of EU citizens are prosecuted for alleged crimes or convicted in another Member State of the EU yet there is significant evidence of unacceptable disparity in standards of detention within Europe. Fair Trials International (FTI) has long noted the existence of lengthy pre-trial detention and the inconsistent availability of alternatives to detention such as electronic tagging as well as “overcrowding, violence, poor healthcare and lack of facilities”. Likewise, the former Council of Europe Commissioner on Human Rights, Thomas Hammarberg, has described the use of pre-trial detention as “virtually systematic in a number of European countries" with rates of 42% in Italy.The structural and systemic problem of overcrowding in the Italian prison system led to a pilot judgment by the ECtHR in 2013 which condemned Italy for inhuman and degrading treatment in overcrowded jails. The evidence of the need for action is clear.

Mutual recognition and a lack of mutual trust

To start at the beginning, the term ‘common detention rules’ relates to three mutual recognition Framework Decisions (FD) agreed by the EU to be implemented by 2011 and 2012 by all Member States. They form part of a broader judicial cooperation agenda which has focussed on the mutual recognition of judicial decisions and the approximation of law. The European Arrest Warrant [EAW] is the most notorious of these instruments.

Mutual recognition allows judicial decisions to ‘move’ freely between EU Member States based on the presumed existence of “mutual trust” between them. The approach has been predominantly prosecutorial, but, as experience with the operation of the EAW has demonstrated the fallacy of assumptions about trust, there have been increased efforts to establish specific individual safeguards to support the mutual recognition agenda. In 2009, the Council of the EU set out a ‘Roadmap’ for harmonizing some criminal procedural standards to “enhance citizens' confidence that the European Union and its Member States will protect and guarantee their rights”. To date, three Directives (the Directiveon the right to interpretation and translation in criminal proceedings; the Directiveon the right to information in criminal proceedings; and the Directiveon the right of access to a lawyer) have been agreed with a further packagerecently proposed.

However, the EU had already taken action in respect of EU citizens who were non-residents in a Member State where they face criminal proceedings as it was recognised that, too often, they may end up in detention where residents may not. This can occur pre-trial, because of the fear of flight, and also at sentence, where non-custodial sentences may be considered inappropriate. The three instruments agreed were:

·         The Framework Decision on the Transfer of Prisoners to be implemented by 5.12.11. It allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. It also establishes a system for transferring convicted prisoners back to the Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence.

·         The Framework Decision on probation and alternative sanctions to be implemented by 6.12.11.  It applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person consents.

·         The European Supervision Order (ESO) to be implemented by 1.12.12. It enables a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where non-resident is suspected of having committed the offence to Member State where they are normally resident., thus, hopefully avoiding pre-trial detention.

In relation to detention conditions, a Commission Green Paper on Detention was also published in 2011 acknowledging that “excessively long periods of pre-trial detention are detrimental to the individual, can prejudice judicial cooperation between the member states and do not represent the values for which the European Union stands”. Pragmatically, mutual trust is undermined by inconsistent and unfair detention arrangements and the EU needs to address this.

“Fewer than half of EU Member States have implemented common rules on detention”

It is in this context that the Commission published its report on the implementation of these ‘common rules on detention’. Rates of compliance are poor:

·         FD on the Transfer of Prisoners: only 18 Member States have implemented it. Austria, Belgium, Czech Republic, Denmark, Finland, France, Croatia, Hungary, Italy, Luxembourg, Latvia, Malta, Netherlands, Poland, Romania, Slovenia, Slovakia and the UK. Only Denmark, Finland, Italy, Luxembourg and the UK had implemented it by the deadline. This is the only instrument the UK has implemented.

·         FD on probation and alternative sanctions: only 14 Member States have implemented it - Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, and Slovakia.  Only Denmark and Finland had implemented it by the deadline.

·         European Supervision Order: only 12 Member States have implemented it - Austria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, Slovakia. Only Denmark, Finland, Latvia and Poland had implemented it by the deadline.

In relation to the implementation legislation itself, the Commission has now highlighted some key concerns arising from its analysis which will need to be addressed by all Member States:

·         Member States must set out an effective procedure to give a role to “the person concerned in the transfer process” under the various FDs.

·         The principle of mutual trust is to be respected by achieving “the right balance” between respect for the sentence originally imposed and the legal traditions of Member States.

·         Member States must properly implement the duty to provide information about the sentence to avoid any differences discouraging use of the instruments.

·         The Commission’s view is that adding additional grounds for refusal and making them mandatory “seem[s] to be both contrary to the letter and spirit of the Framework Decisions”.

·         The time limits are to be respected and should be exceeded only in exceptional circumstances”.

·         Those provisions which link the FD and the EAW should be implemented. For example, Article 21 (which allows for the return of a person by EAW if s/he has not complied with an ESO) have not properly been implemented. The Commission describes this as ‘regrettable’ as Article 21 “would be very useful to allow persons awaiting trial for relatively minor offences to go home”

·         The Commission rules the declarations made by four Member States (Ireland, Malta, Netherlands and Poland) in relation to transitional provisions on the transfer of prisoners invalid because they were made after the adoption of the FD.

Those who have transposed the instruments are still requested “to review and align their national implementation legislation with the provisions of the Framework Decisions”.

Enforcing compliance and creating trust

The three FDs are interconnected and linked to the EAW. In its press release, the Commission confirms pragmatically that

“The rules [are].. an essential element of a common European area of justice ….[and]… important tools to further social rehabilitation of prisoners and reduce the use of pre-trial detention. Their proper implementation is crucial.”

They also have “the potential to reduce prison overcrowding and reduce prison budgets”.

There is an evident need for swift action to address these failures. From the perspective of the ‘suspect’, the non-adoption of the ESO by many Member States is concerning as it is a crucial ‘flanking measure’ for the EAW. FTI has long campaigned on the issue of bail in the EU, producing clear evidence of discrimination in the operation of decision-making (e.g. see the House of Lords report in 2007 on the European Supervision Order). The excessive and unfair use of detention for the non-resident suspect also undermines the right to a fair trial because it affects the suspect’s exercise of fair trial rights as well as the presumption of innocence. These fundamental rights are enshrined in Article 5 and 6 ECHR and Articles 6, 47 and 48 of the EU Charter of Fundamental Rights and merit active protection in practice. From the prosecution perspective too, cooperation cannot be made effective with such partial transposition.

 So what can be done? Infringement action against Member States is not possible until 1 December 2014 because of Article 10 of Protocol 36, which provides for a five-year waiting period before the Commission can sue Member States for non-implementation of EU ‘third pillar’ (criminal law and policing measures) adopted before the entry into force of the Treaty of Lisbon, such as these FDs. Whether the Commission will take such action at that point remains to be seen.

However, there is a broader point at stake: will these laws be used even if the FDs are implemented domestically and will they make any difference? The Commission’s reportnotes that the “limited figures available show that the Transfer of Prisoners is already used whereas no transfers have yet taken place under Probation and Alternative Sanctions and European Supervision Order”. We need to explore fully the reasons for the lack of commitment to these instruments. Is it a reflection of the prosecutorial drive behind the mutual recognition agenda or the absence of commitment to human rights protection? Is it the result of a lack of understanding (see FTI’s report) or weaknesses in training? Is it connected to resources, occupational cultures or a reluctance to cooperate? Or is it a mixture of all these factors? Over a hundred years ago, Roscoe Pound concluded that legislation which has not been the product of preliminary study of the conditions to which it was meant to apply will not respond accurately to social needs.Consequently, the process of making effective laws must go beyond statistics and data gathering to consider the human impact of its implementation.


Barnard & Peers: chapter 25

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Family Reunion for EU citizens living in their own Member State: Clarifying the Surinder Singh and Carpenter judgments

Chiara Berneri, Lecturer at BPP Law School

When can an EU citizen who lives in his or her own Member State claim a right under EU law to be joined by his or her family members? The Court of Justice of the European Union (CJEU) finally has a chance to clarify its judgments in Surinder Singh and Carpenter, concerning respectively family reunion for EU citizens who move to another Member State and then return to their home State (‘returnees’), and family reunion for EU citizens who provide services in another Member State.

Facts of the cases

On the 12th of December 2013 Advocate-General (A.G.) Sharpston delivered her opinion on the Joined Cases of O and S (Cases C-456/12 and C-457/12). The first case is about two separate families: O and B. In 2007 O (a third-country national) and sponsor O (ie the Dutch citizen related to O) took residence in Spain. A residence document valid until September 2014 attests that. In reality, two months after arriving in Spain, in 2007, sponsor O returned to the Netherlands because she could not find a job there. However, since her departure, she continuously flew to Spain over weekends and enjoyed services there. Since 1 July 2010 O has been registered as residing with sponsor O in the Netherlands. However, his application for a document showing lawful residence was refused.

B is a Moroccan national who lived in the Netherlands, since 2002, with sponsor B (a Dutch citizen). After being sentenced to two months’ imprisonment for using a false passport he invoked the ‘Belgian route’ well-known to Dutch immigration lawyers, moving to Belgium where sponsor B rented out a flat for them. Since sponsor B was not able to find a job in Belgium she moved back to the Netherlands but came back every week end to spend time with B. The couple got married in Morocco in 2007. In 2009 the Netherlands lifted the declaration of undesirability against B. The couple moved to the Netherlands. B applied for a document showing his lawful residence but it was refused.

The second case is also about two separate families: S and G. S is a Ukrainian national. Her son-in-law, sponsor S, has worked since 2002 for an employer established in the Netherlands but spends 30% of his time preparing and making business trips to Belgium, to which he goes at least once a week. S looks after her son-in-law’s child. S applied for a document certifying lawful residence in the Netherlands but it was refused. 

G is a Peruvian national. She married sponsor G in Peru. Sponsor G lives in the Netherlands but works for a Belgian employer and he travels daily to Belgium. G’s application for a document certifying lawful residence in the Netherlands was rejected.

In each of these cases each third country national has family ties with a Dutch national who is his/her sponsor. The Dutch Council of State is asking whether the movement exercised by the Dutch sponsors suffices to establish that EU law applies and to generate a derived right of residence for the third country national family members.

The Opinion

In her preliminary remarks A.G. Sharpston clarifies the two points on which the opinion focuses. First of all, the aim of this opinion is to find out whether denying lawful residence to these third country nationals would amount to a restriction of the right of their sponsors to move and reside freely within the territory of the Member States. Secondly, in this opinion she focuses on trying to outline the parameters within which derived residence rights for third country national family members arise in the home Member State of an EU citizen who has exercised free movement rights without necessarily exercising full residence rights in another Member State.

On the first point –why derived rights of residence exist- the A.G. starts from a historical development. She points out that the concept that third-country national family members of EU citizens should enjoy derived rights of residency was developed in the context of the economic freedom of movement. However, with the introduction of the concept of EU citizenship the exercise of the right of free movement became independent from the economic freedom of movement and from the pursuit of economic activity.

Unlike previously, according to A.G. Sharpston, under Directive 2004/38 EC (the ‘citizens’ Directive’), the existence of a derived right of residence no longer depends on showing the possible effect on the EU citizen of denying family members residence: rights are granted automatically to a select group of family members. A.G. Sharpston then states that since derived rights of residence only exist where these are necessary to ensure that the EU citizens can exercise their free movement and residence rights effectively, the questions that the Court should ask itself would be a) whether the EU citizen has exercised or is exercising such rights; b) whether denying their family members residence would restrict such rights.

A.G. Sharpston starts engaging with these questions by stating that this case is different from Zambrano, McCarthy and Dereci because in this case all the applicants exercised rights of free movement and/or residence to another Member State. With regard to these cases, and in particular Dereci, A.G. Sharpston points out that the Court seems to suggest that there are three separate bases under EU law according to which derivative family rights can be granted: a) the right to respect for private and family life (Art. 7 of the Charter); b) the right of free movement and residence of EU citizens (Art. 21 TFEU); c) the denial of the genuine enjoyment of the substance of the rights conferred on an EU citizen (Art. 20 TFEU).

However, according to her, there is a different way of approaching the matter. As a matter of fact, the Charter can apply only when EU law applies. Therefore, the right to respect for private and family rights is not an independent way through which residence family rights can be granted to third country national family members but it applies only when the given situation concerning EU citizens falls within the scope of EU law. So it is necessary for the Court to give clear guidance to national courts as to the circumstances in which an EU right, read according to the Charter, is triggered. On the basis of these guidelines given by the Court it is up to the national court to find out whether the EU right, applied to the facts of the case, precludes the application of the national measure.

After this preamble A.G. Sharpston argues that the citizens’ Directive cannot be applied in these cases. In particular, she points out that, in general, EU citizens can move (within the EU) in three directions: a) between two Member States of which they are not nationals; b) from their home Member State to another Member State; c) from another Member State back to their home Member State (ie returnees). The citizens’ Directive (Art. 3(1)) just protects situations a and b while the circumstances at stake seem to fall under the third situation.

Since the citizens’ Directive cannot apply, she suggests then that the position of the applicants should be considered under the EU treaties and, in particular, under Art. 21 TFEU. In her view, pursuant to Art. 21, Member States should not restrict the rights of EU citizens to move and reside freely within the territory of the EU and the same principle applies to EU citizens who marry third country nationals and seek to exercise free movement. In fact, if a couple is precluded from living together in the Member State of which the EU citizen is a national they either will be forced not to live together or will be obliged to move elsewhere outside the European Union or in another Member State.

In the first hypothesis the EU citizen will be stripped of his/her EU citizenship rights as that status has just limited importance outside the EU. In the second case the measure results in more movement. However, while facilitation of free movement is an objective of the EU, imposing free movement is not. According to this understanding, the home Member State cannot treat its own nationals returning to reside on its territory less favourably than the treatment that they enjoyed in the host Member State. Because of the first movement, the rights under EU law are “passported” and remain with the EU citizen on his or her return to his or her home Member State (referring to the prior CJEU case-law, namely Eind and Surinder Singh).

A.G. Sharpston then moves on to face the second issue in the case: trying to define the concept of residence. After pointing out that no secondary and primary measures provide a clear definition of what residence is, she states that she does not think that residence requires necessarily the constant physical presence in the territory of a single Member State, or that when a EU citizen has taken up residence in another Member State that has to be the only place of residence. In fact, provided that the test for establishing residence is complied with in one Member State, it should not matter that the EU citizen might keep some form of residence elsewhere and this rule seems to be implied also in the citizens’ Directive.

She does not agree with the idea that the EU citizen must have resided three months in the host Member State before he/she can claim the derived rights of family reunification for his/her third country national family member as a returnee. Although the length of an EU citizen’s stay in another Member State is a relevant criterion to define residence it cannot be the only absolute threshold that defines whether he/she has or has not exercised rights of residence and can therefore be joined by his her family members.

What about the position of EU citizens who move to a Member State without necessarily taking up residence there? Here, the opinion builds on the case of Carpenter where the A.G. points out that neither Singh nor Eind cover this scenario. However, in Carpenter derived rights of residence in the Member State of nationality and residence can be available to third country EU national family members who have exercised single market freedoms to another Member State. In particular, in that case, providing services in other Member States was sufficient for a British publisher to invoke the right under EU law to be joined by his wife.

A.G Sharpston points out that the reasoning in Carpenter, regarding the provision of services, is relevant both a) for the active exercise of rights of movement without residence as a worker and b) to the passive exercise of the right to receive services. On the first point she finds that the exercise of the right of free movement in connection with an activity by an EU citizen may trigger the necessity to be joined by his/her family members in his/her home Member State. There is no difference between an EU citizen who lives in his or her home Member State and works for an employer based in another Member State, and an EU citizen who lives in his or her home Member State, works for an employer based in the same State but has to travel to other Member States for work. In both cases in fact the worker is obliged to cross the border to keep his/her job. The question then is whether or not a restriction on the presence of the third country national in the home Member State is going to prevent the worker crossing the border in order to perform his/her job. Whether the third country national can claim such a right depends on some variables: a) the level of family connection with the EU citizen; b) the EU citizen’s exercise of the right of free movement; c) the causal link between the residence of the third country national and the EU citizen’s exercise of rights of free movement.

With regards to the right to receive services, Sharpston points out that any EU citizen who moves to another Member State in order to enjoy a service there falls within the scope of application of EU law. However, although moving to another Member State in order to receive services is definitely an exercise of an economic freedom, it is usually not the type of activity which enables EU citizens to support or make them dependent on their family members. However, she does not rule out that there could be some exceptional circumstances, for example in case of illness, in which such dependency can be triggered.

Finally, A.G. Sharpston contemplates the hypothesis of a EU citizen moving to another Member State just in order to exercise the right of family reunification with his/her family member and finds that a national measure that imposes movement restricts the choice to decide whether to move or not to move and, therefore, is contrary to Art. 21(1) TFEU.

After having explained the conditions that govern the exercise of derived rights of residence, A.G. Sharpston concludes by pointing out what determines the derived rights of residence of O, B, S and G. In the case of O, she finds that sponsor O should not be treated less favourably when she returns to work and live in the Netherlands and, therefore, O would have under EU law a right to lawful residence in the Netherlands. In the case of B, the applicant does not seem to fall either under the citizens’ Directive or under the citizenship provisions of the Treaty. However, B could still claim a derived right of residence in the Netherlands provided that the decision to join sponsor B was taken in the exercise of their right to a family life.

In the case of S, sponsor S exercises his right of free movement in connection with an economic activity and there seems a family connection (S is a dependent family member in the ascending line within the meaning of the citizens’ Directive, and sponsor S materially supports S). With regard to the presence of a causal link the referring Court should examine whether denying residence to S would cause sponsor S to seek alternative employment that would not involve the exercise of right of free movement or cause him to move with his family, including S, to another Member State.In the case of G, sponsor G is a frontier worker and married with G in Peru. As spouses, they must be considered to be dependant economically and emotionally. Denying G residence in the Netherlands might force him to move somewhere else in the EU. That would consist in a restriction of his choice of being a frontier worker, an economic freedom guaranteed by Art. 45 TFEU.

Comments

The opinion of A.G. Sharpston is extremely interesting and relevant as it seeks to clarify the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim derived rights of residence in that home Member State under EU law. Normally, family reunion for EU citizens living in their own Member State is wholly subject to national law, leaving it open for the Member State in question (notably the UK and Netherlands) to lay down much stricter conditions for family reunion. So the ability to rely on EU law can be crucial for the families concerned.

The Advocate-General makes a good effort to define what amounts to the right of residence. Her interesting finding is that EU citizens are not necessarily required to have one place of residence. This means that EU citizens can still reside in their Member State of nationality but have their centre of interest in another Member State. As long as they cross the border they are entitled to claim derived rights for their third country national family members in their Member State of origin provided that they fulfil the requirement of being family members and there is a causal link between the residence of the third country national and the EU citizen’s exercise of rights of free movement. Building upon Carpenter, EU citizens are also entitled to claim derived rights for their third country national family members in their home Member State in case the exercise of the right of free movement was sufficiently connected to the position of the family members. Nevertheless, the Advocate-General finds that the simple move to another Member State in order to receive services, even though that situation falls within the scope of EU law, cannot usually trigger derived family reunification rights under EU law.

A.G. Sharpston has found a legally grounded solution to circumstances that, apparently, seem to fall within the area of national law. Her approach, if adopted by the CJEU, will be able to expand the protection of the right to family life of EU citizens who still officially reside in their own Member State. Hopefully the Court will not ignore her clear analysis or, at least, will take the opportunity to give a structured guidance to solve these and similar cases.


Barnard & Peers: chapter 13

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The EU’s Data Retention Directive: Fighting Back against mass surveillance in the EU’s Court of Justice

Steve Peers

I’m writing this post on ‘The Day We Fight Back’ against mass surveillance. So it seems a suitable day to comment (a bit belatedly) on the Advocate-General’s opinion from last December on the validity of the EU’s data retention Directive (Directive 2006/24; Cases C-293/12 Digital Rights and C-594/12 Seitlinger).

Overall context

These cases, referred from the Irish and Austrian courts, present the Court of Justice of the EU (CJEU) with its best chance yet to deliver an iconic judgment relating to the EU’s Charter of Fundamental Rights. The Test-Achats judgment of 2011, concerning the invalidity of EU rules permitting insurance discrimination between men and women, just didn’t amount to such a judgment, resulting as it did in higher car insurance rates for women drivers without much analysis of the key issues by the CJEU.

This time around, the CJEU is aware that: the constitutional courts of Germany and Romania have criticised the Directive on fundamental rights grounds; the European Court of Human Rights is dubious about mass surveillance (cf the S and Marper judgment); and there is considerable public concern across the EU about mass surveillance, in particular in the current context of revelations about spying by American security agencies.

As for the Directive itself, it requires Member States to compel telecom and Internet access providers to keep records of all phone calls, Internet use and mobile phone location data for at least six months, with no real fixed upper limit, so the police can access those records for the purposes of investigations into serious crime. (There is a nominal two-year upper limit for keeping this data, but Member States can keep in place any higher limits that they already applied, or ask the Commission for the power to set new higher limits in place if they didn’t already apply them). Other EU laws giving Member States an option to require that telecom providers keep such data for other reasons were unaffected. Overall, as I pointed out at the time, ‘Member States could insist on (or at least request) the retention of any type of data for any type of security purpose for any period at all’.

Furthermore, the Directive set no safeguards as regards the use of that data which industry was required to retain. This was because the Directive had to limit itself to regulation of the telecoms industry, due to its ‘internal market’ legal base (upheld by the CJEU in Case C-301/06 Ireland v EP and Council), so it couldn’t regulate what police forces did with the data when they got it.

While it is possible that this mass surveillance may assist in the prosecution of crime or the prevention of terrorism, that does not automatically excuse it. No doubt there is less crime in totalitarian states, but democratic states need to strike a balance between liberty and security. According to the long-standing case law of the European Court of Human Rights, targeted surveillance is only acceptable if the law in question is very precise and sets out detailed safeguards for the persons concerned. This must surely apply a fortiori to laws such as this Directive, which provide for mass surveillance – if indeed such surveillance can ever be justified at all.

The Advocate-General’s opinion

The opinion takes as its starting point (correctly) that the data retention Directive interferes with the rights to privacy and data protection (Articles 7 and 8 of the Charter). So the focus of the case is whether such interference can be justified. Article 52(1) of the Charter allows restriction of Charter rights where those restrictions are provided for by law, respect the essence of the rights, and are proportionate to protecting a public interest recognised by EU law or the rights of others. Here there is clearly a public interest, so the Advocate-General examines the other facets of the test.

He concludes that the EU Directive is not ‘prescribed by law’, within the meaning of that phrase set out in the jurisprudence of the European Court of Human Rights. The crucial problem here is the quality of the law set out in the Directive. In particular, it is not sufficiently precise as regards the limitation on Charter rights, and it does not set out guarantees for use of the data.

This raises an issue specific to the nature of the relationship between the EU and its Member States. Since Directives must be applied by Member States in their national law, it could potentially be left to the Member States to provide for such precise details concerning the interference with Charter rights when they transpose the Directive. It would be possible for the CJEU to clarify further what such rules must address, as it has in a line of case law concerning interference with privacy rights justified by the protection of intellectual property (ie downloads of music, et al, in breach of copyright).

The Advocate-General rejects that possibility here – and quite rightly. The difference is that the data retention Directive requires the Member States to interfere with Charter rights, whereas the legislation at issue in the other cases merely permits them to do so. In such a case the EU must surely bear a significant part of the responsibility – if not the whole responsibility – for satisfying the ‘quality of law’ test. This would be consistent with the case law of the European Court of Human Rights in the Bosphorus Airways v Ireland case, and the draft EU accession agreement for the ECHR, which both distinguish between cases where the EU requires its Member States to act, and where it simply permits them to do so.

Yet on this point, there is another complication arising from the nature of EU law. Before the entry into force of the Treaty of Lisbon, the legal order of the Union was divided into three so-called ‘pillars’. While the internal market was part of the first pillar (Community law), police cooperation was part of the third pillar (policing and criminal law). So a Directive based on the internal market could not address issues relating to police cooperation, and this Directive does not. That was precisely why the CJEU rejected the Irish government’s challenge to the Directive in 2009.

To address this problem, the Advocate-General suggests that the EU should at least have agreed some guarantees informally. But this would not be good enough, as non-binding guarantees would not satisfy the ‘quality of law’ test. The EU could, however, have adopted a third pillar ‘Framework Decision’ setting out such guarantees before the Treaty of Lisbon; and now it can set them out in the form of a Directive.

Finally, the Advocate-General concludes that the Directive is also disproportionate, since there is not a good enough reason for the possibly unlimited period of retaining personal data. Yet it must be pointed out that Member States’ power to retain existing national laws allowing for longer periods of data retention is built into the internal market rules of the Treaty. To disable the application of those provisions, the Court of Justice would have to rule that the Charter took priority over the Treaty (ie, other EU primary law).

Conclusions

These cases give the opportunity to the CJEU to add a lot of flesh to the bones of the rules concerning interference with Charter rights – in particular the application of the ‘quality of law’ test, which the CJEU has not referred to at all before. The difficulties created by the previous division of EU law into pillars, and the particular rules set out in the internal market provisions of the Treaties, must also be addressed. Yet in light of the overall context of these cases, the established jurisprudence of the European Court of Human Rights, and the strong opinion of the Advocate-General, it would simply be shocking if the Court of Justice did not either rule the Directive invalid, or at the very least lay down detailed rules which Member States have to follow when applying it.


Barnard & Peers: chapter 9

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