The EU/Canada free trade deal and disputes over investor protection: a silver lining or a cloud?

Steve Peers

According to recent press reports, the planned EU/Canada free-trade agreement (CETA), which was due to be signed in September, is potentially now in difficulty because the German government now objects to the inclusion of rules on investor/state dispute settlement. This could have significant implications – for the EU/Canada trade deal, for the EU/USA agreement which is also under negotiation (TTIP), for the EU’s foreign trade and investment policy generally, and even for the possible UK withdrawal from the EU (‘Brexit’).

Background

The EU and Canada have been negotiating a free trade deal since 2009, and in October 2013 it was announced that a deal was agreed, subject to technical drafting issues which were meant to be agreed over the following months. No parts of the text of this agreement have been officially released so far, but according to the EU’s press release, the agreement includes: liberalisation of most trade in goods, bar a few sensitive items such as sweetcorn (on the EU side) and dairy products (on the Canadian side); liberalisation of services; intellectual property commitments (mainly entailing changes in Canada); and investment liberalisation.

What would the impact of the free trade deal be? First of all, a personal perspective. While all aspects of the EU’s external policies are fascinating, I have a particular personal interest (though no financial interest) in EU/Canada relations, as a dual citizen of the UK and Canada who has lived from many years in both countries. A detailed survey of frequent visitors to both countries (my children) concluded that an EU/Canada trade deal would benefit both sides, by increasing market access in Canada for European biscuits, chocolates, cheese, ‘Keep Calm’ posters and John Lewis department stores, and increasing market access in the EU for Canadian maple syrup, pancakes, bacon and Tim Horton’s donut shops.  For myself, my main hope for an EU/Canada free trade deal is that European supermarkets would be filled with Concord grapes every September.

From a broader perspective, of course there are critics, on both the EU and Canadian side, of all of these commitments made in the free trade deal, due (for instance) to concerns about liberalisation and privatisation of services and the impact of increased intellectual property protection. There are also supporters of the deal among exporters who would stand to benefit, but as usual they are not making their voices heard in the public debate as effectively as the critics are.

My personal perspective aside, I think it’s rather early to judge the merits of this trade agreement before the text is made available to the public. But the criticism of the secrecy of the process is clearly well founded: if the text was largely agreed last year, why not release those parts of the text which have been agreed? Even if there is a case for confidentiality during negotiations, there is surely no case for confidentiality afterthey are complete. Does it really take nearly a year to agree a few technical details? If the negotiations weren’t really complete last year, why not just admit that? The advocates of free trade don’t do themselves any favours with their lack of transparency and (apparently) candour. Such tactics are bound to make more members of the public suspicious of the content of the deal, and unwilling to believe what the negotiators of the treaty say about it.  

Investment issues

The most recent concerns from the German government (which are widely shared by other governments, the public and some Members of the European Parliament) have been about the investor/state foreign investment rules in the planned treaty. These rules might not have raised so many concerns, if the EU weren’t also negotiating a free trade treaty with similar foreign investment provisions with the United States. Generally, the concern is that these provisions will allow private arbitrators to issue binding rulings which will force the EU and its Member States (as well as the Canadian side) to give compensation for decisions which fall well short of seizing foreign investors’ assets without compensation, but which merely impact upon the value of their investment in some way.

There is a widespread (and understandable) view that this is unacceptable from a democratic point of view. Furthermore, there are problems from the judicial point of view. It should be noted that the Court of Justice of the European Union (CJEU) is generally wary of giving power to international courts to rule on EU law issues (see most recently its ruling on the planned EU patent court); it would surely be even less happy with the idea of giving such power to private arbitrators. Any EU Member State, the European Parliament, the Council or the Commission could ask the CJEU to rule on whether the draft provisions on this issue are compatible with EU law. If the investment provisions indeed give private arbitrators the power to give binding rulings on EU law, the only way that the CJEU would approve the deal would be if the current judges were all replaced by flying pigs.

According to press reports, the investment provisions are considered necessary in order to ensure that Canadians are willing to invest in the EU, and vice versa. But this argument is undercut by the facts: according to the expert joint study, a ‘scoping exercise’ on EU/Canada trade and investment relations, which was carried out before the negotiations began, the EU was already the second largest investor in Canada, and Canada was the fourth largest investor in the EU. This was in the absence not only of an EU/Canada investment agreement, but also in the absence of many bilateral investment agreements between individual EU Member States and Canada.

The EU’s press release on investment issues attempts to address these concerns, by listing a number of safeguards which the agreement will contain. It would be useful to see the text of the agreement in order to check these arguments. In any event, the press release undercuts its own authority, by asserting several times that this is the first EU investment agreement to contain such safeguards. Yes – but the EU’s authority over foreign investment only dates from 2009, and so this will be the first investment protection agreement which the EU signs. (The EU has signed treaties dealing with market access for investments before, but investment protection is a broader issue). It’s rather like trying to praise your current sexual partner by telling her that she’s giving you the best sex you’ve ever had – while glossing over the fact that she’s the only partner you’ve ever had.

What next for the EU/Canada trade deal?

Assuming that the press reports are correct, there are several possibilities. First of all, there could be amendments to the investor/state dispute provisions, to weaken their impact. Alternatively, the provisions on investor/state dispute settlement could be removed entirely from the treaty. More drastically still, the entire subject of investment could be dropped from the treaty. Finally, the treaty itself could be dropped. This last scenario does seem rather unlikely, given the significant market access for both sides that would result from the remaining text of the treaty.

If there are no provisions on foreign investment in the final CETA, the issue would still be addressed by the existing bilateral treaties between EU Member States and Canada, and the EU has also given its Member States authority to sign new treaties on this issue (subject to various conditions) in legislation adopted in 2012.

What next for EU other trade and investment negotiations?

As noted already, the EU/Canada trade negotiations are something of a proxy for the EU/USA ‘TTIP’ negotiations now underway. Whatever happens to the investment provisions in CETA will probably then set the template for the TTIP.

More broadly, the EU is negotiating trade and investment treaties with a number of countries in South America and South-East Asia, as well as India and Japan.  Any decision taken as regards investment rules in relation to Canada could well have a knock-on effect on those talks too, as well as the stand-alone investment negotiations underway between the EU and countries like China and Myanmar/Burma.

The impact on the UK’s relations with the EU

Any major developments in the EU’s trade relations in the next few years could impact significantly on the prospect of the UK’s potential withdrawal from the Union. The reason for this is that one complaint against the EU is that it ‘prevents Britain from exporting abroad’. Taken literally, this is clearly wrong: the EU does not impose significant export controls on any of its Member States (besides restraining some arms-related exports, which largely reflect other international commitments in any case).

But a more nuanced version of this critique is essentially accurate: since the ‘common commercial policy’ (ie trade policy with non-EU countries) is an exclusive power of the EU, it’s not possible for any Member States to have a more liberal (or indeed, a more protectionist) policy than the EU as a whole. If the UK weren’t in the EU, it would be free to have a more liberal trade policy, by signing free trade deals with more countries. (There must be some people who instead would like the UK to have a more protectionist trade policy, but their voices aren’t really being heard in this context).

Yet this argument is only valid if the EU’s common trade policy is much less liberal than the UK’s individual trade policy would be. (It also assumes that the UK would be successful in persuading third States to negotiate trade deals with it; we can only speculate on this issue for now). Already the EU has free trade agreements with many countries in Europe, Latin America, the Middle East, Africa and the Caribbean. (It should be noted that many of these treaties are called ‘association agreements’, but are in fact free trade agreements, and are notified to the World Trade Organisation as such). It also has a free trade agreement with South Korea, and is about to conclude a deal with Singapore. As noted above, besides Canada and the USA, it is negotiating such deals with Japan, India and other countries in Latin America and South-east Asia.  

However, on some occasions the EU is unable to reach trade deals with third countries (negotiations have been going on fruitlessly for many years with the Gulf States and Brazil and nearby countries, for instance). The key question is whether dropping or amending the investment protection provisions in ongoing negotiations will make it more or less likely for those negotiations to be concluded, and for the final deal to be approved. If it’s more likely to lead to agreed and approved deals, then one of the arguments against Britain’s EU membership is significantly weaker. But if it makes it harder to agree such deals, then the reverse would be true.

Finally, an interesting feature of EU/Canada trade relations, according to official Canadian statistics, is that Canada/UK trade makes up about 30-40% of Canada's total trade with the EU. But while Canada runs a persistent trade deficit with the rest of the EU, it runs a persistent trade surplus with the UK. Economists should investigate whether the future EU/Canada trade agreement would reduce the UK's trade deficit with Canada, perhaps as a trade-off for increasing the market access of Canadian goods and services to the rest of the EU. If so, this would be a very clear example of how British membership of the EU can give benefits to the UK which it would be very unlikely to achieve as a non-member.  

Barnard & Peers: chapter 3; chapter 24 

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The CJEU’s approach on the minimum age requirement for spouses in an application for family reunification

Georgios Milios

PhD candidate on immigration law at the Faculty of Law, University of Barcelona

In its recently decided judgment in Noorzia, the CJEU ruled on whether a national law which requires the sponsor and his/her spouse to have reached the age of 21 by the date on which the application for family reunification is submitted (rather than by the date on which the decision on the application is made) is consistent with Art. 4 (5) of the family reunion Directive (Directive 2003/86/EC). In a particularly brief judgment, the Court answers to this question in the affirmative. In this post, the judgment is criticised for being illiberal and outside the line drawn by the Court in its earlier jurisprudence and the European Commission’s guidance on the application of the family reunification Directive. Not least, the present article notices that the judgment departs significantly from the Advocate General’s opinion on the same case which was subject of an earlier post in this blog.

The facts of the case can be summarised as follows: Mrs. Noorzia applied for a residence permit in order to reunify with her husband who resides in Austria. The application was rejected because although Mr. Noorzia would reach the age of 21 by the time of the effective reunification, he was under that age at the date on which the application was lodged. Indeed, the Austrian law explicitly requires both spouses to be at the age of 21 at the moment the application for family reunification is submitted. In these circumstances, the national court referred the following question to the CJEU for a preliminary ruling: ‘Is Article 4(5) of Directive [2003/86] to be interpreted as precluding a provision [of national law] under which spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to family reunification is lodged?’ (para. 11)

Art. 4 (5) provides that ‘in order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’.

The Court’s judgment

The Court notes that by not specifying whether the minimum age condition should be met at the time of the application or at the time of the decision on the application for family reunification, the EU legislature intended to leave to the Member States a margin of discretion. Furthermore, the Court adopts the view that the relevant provision of the Austrian law does not prevent the exercise of the right to family reunification nor render it excessively difficult but on the contrary pursues the aim of prevention of forced marriages as persons who have reached the age of 21 when the application is submitted are less likely to contract a forced marriage and accept family reunification than persons who are under that age at that date. Lastly, the Court holds that the provision of the Austrian law at hand is consistent with the principles of equal treatment and legal certainty and ensures that family reunification depends on circumstances related to the applicant and not on the length of time which will be needed for the consideration of the application.

In view of the above mentioned considerations, the Court concludes that ‘the answer to the question referred is that Article 4(5) of Directive 2003/86 must be interpreted as meaning that that provision does not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification is lodged’ (para. 19).

Comments

It is apparent that the Court adopts a strict approach towards immigrants in this judgment. As noted above, this approach departs from the Advocate General’s opinion in this case, the European Commission’s guidance on the application of the Directive and to a certain degree from the previous jurisprudence of the Court on family reunification cases.

In particular, the Commission through its guidance as well as the Advocate General Paolo Mengozzi clearly state that Art. 4 (5) should be interpreted to mean that the Member States may require the sponsor and the spouse to be at the minimum age at the time of the effective family reunification and not at the time on which the application is lodged. This approach is based on a literal, teleological and systematic interpretation of the provision at hand. Indeed, as the Advocate General correctly notes, the provision of Art. 4 (5) itself gives the answer to the question as it provides that the minimum age should be reached ‘before the spouse is able to join’ the sponsor. Therefore, taken that the spouse is only able to join the sponsor when a positive decision with regards the application for family reunification is made, the crucial time period is the time of the effective family reunification. This being said, the Court’s approach that the provision gives a wide margin of discretion to the Member States to decide whether they would set the time limit at the date of the application or at the date of the decision on the application appears groundless.

Not least, the way that the Court deals with the teleological interpretation of the provision seems problematic as well. First, it only refers to the prevention of forced marriages and not to better integration which also constitutes a pursued aim of the provision at hand. In that respect, it should be noted that long family separations may in fact damage integration.

Second, even with regards to the aim of prevention of forced marriages, the Court’s approach fails to take into consideration the right of young couples to contract a genuine marriage and enjoy family life as derived from Art. 8 of the ECHR and Art. 7 of the ECFR. This being said, the Court should have at least mentioned (in line with its prior case law) that an individual assessment of a case is particularly important and that in case Member States are convinced that there are no indicators of a forced marriage, they should allow family reunification even if the minimum age requirement is not fulfilled at the time of the submission of the application. On the contrary, in its judgment the Court gives the impression that if the minimum age requirement is not fulfilled, the application could be rejected even when it becomes obvious from other factors that the marriage is genuine and that the aim for better integration is not achieved by refusing the application.

Furthermore, the systematic interpretation made by the AG is also missing in the Court’s reasoning. As mentioned by the AG in his opinion, when the EU legislature wished to set the time limit at the day of the submission of the application, it did so explicitly. Therefore, in the provision at hand, the legislature’s aim was to set the time limit at the day of the decision on the application for family reunification. The Court does not adopt the same approach in its judgment and merely reads the provision as giving a wide margin of appreciation to the Member States to decide when the requirement at hand should be fulfilled.

Lastly, the judgment can be also criticised for not being in line with the previous jurisprudence of the Court on the family reunification Directive. In particular, in Chakrounthe Court held that family reunification constitutes the general rule, the limitations should be interpreted strictly and the margin of appreciation should be exercised in a way that does not undermine the purposes of the Directive which is to promote family reunification. In Noorzia, the Court adopts the strictest possible approach towards the immigrants disregarding the above mentioned principles and recognises a wide margin of appreciation to Member States which in some cases may result in family reunifications being particularly difficult to achieve.

In conclusion, it should be mentioned that following the Commission’s guidance and the AG’s opinion with regards to the interpretation of the family reunification Directive, the EU family reunification regime seemed to follow a more immigrant-friendly approach, balancing to a certain degree the strict provisions of the Directive. Regrettably, in Noorzia the Court seems to take a step back adopting a formalistic and strict approach with regards to the interpretation of the Directive. In that respect, it should be added that the Court in the recently decided Dogan judgment (analysed here) chose to not answer the question regarding the integration condition in family reunification Directive, losing another opportunity to rule in a favourable way as regards family reunification of third-country nationals under the Directive.             

Barnard & Peers: chapter 26

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Would the UK’s withdrawal from the ECHR lead to withdrawal from the EU?

Steve Peers

Having long pledged to repeal the Human Rights Act altogether should they obtain a majority of seats in the House of Commons, some Conservative Party figures have recently suggested that they support the UK’s possible withdrawal from the European Convention on Human Rights (ECHR), or at least some sort of national parliamentary override of the European Court of Human Rights (ECtHR) in domestic law (on the details of these plans, see the discussion by Mark Elliott). Indeed, there is a widespread view that one purpose of the recent cabinet reshuffle was to pave the way to this end, in particular by removing the former Attorney-General, Dominic Grieve, who apparently described the plans as a  ‘car crash’ (see further this analysis by Adam Wagner). 

It is sometimes suggested that some or all such changes would necessarily result in the UK having to withdraw from the European Union. Is this the case?

Withdrawal from the ECHR

Of course, it is entirely possible to sign up to the ECHR without being a Member State of the EU: some 19 countries are in this position. But there is no express rule the other way around (see further the analysis in this House of Commons briefing paper). Certainly when the Communities (as they initially were) were initially founded, there was no such expectation. Indeed, France was not a party to the ECHR until the 1970s. 

However, the role of human rights in EU law has evolved considerably since then, first of all with the fleshing out of the role of human rights as part of the ‘general principles of EU law’, then with the adoption of the EU’s Charter of Fundamental Rights (binding since 2009) and most recently with the development of plans for the EU itself to become a party to the ECHR. Furthermore, in all the most recent enlargements of the EU, the existing Member States expected the future Member States to sign up not only to the ECHR, but all of its Protocols, and many other human rights treaties besides. The EU is also a strong advocate of human rights treaties worldwide.

The practice relating to new Member States is underpinned by Article 49 TEU, which states that EU membership is open only to States which respect the EU’s ‘values’. Those values are defined in Article 2 TEU as including ‘respect for human rights’, but there is no express mention of ECHR ratification. In light of the recent practice as regards EU accession, there is undoubtedly an established political principle that EU Member States have to be parties to the ECHR when they join the EU. Logically there must be a corollary principle that they remain ECHR parties after they become EU Member States, no matter when they join the EU. But is this a legal rule?

Article 7 TEU provides that Member States can be suspended from EU membership if there is a ‘serious and persistent breach’ of the values set out in Article 2. There is no power for the EU to fully expel a Member State, but perhaps a country whose EU membership was suspended would be (even) more willing to consider  the option of unilateral withdrawal from the EU, which is provided for in Article 50 TEU.

Short of the ‘red card’ of suspending EU membership, there is also a possible ‘yellow card’ in Article 7(1) TEU. A Member State can be warned by the EU that there is a ‘clear risk of a serious breach’ of the values set out in Article 2 TEU. Neither the red card nor the yellow card provided for in Article 7 has ever been handed to a Member State, and the general assumption is that they would only be used in extreme situations like a military coup. The ‘red card’ would only be issued if all other Member States voted for this, and it could always be argued that the common law and/or a British Bill of Rights (if there were one, following ECHR withdrawal) would prevent egregious human rights breaches from happening in the UK.

There is no express mention of the ECHR in Articles 2, 7 or 49 TEU. However, there are several express mentions in Article 6 TEU, which sets out the basic framework for internal human rights protection within the EU legal order.  First of all, Article 6(3) states that human rights ‘as guaranteed by’ the ECHR are general principles of EU law, although the Court of Justice of the European Union (CJEU) has made clear recently (see the Fransson judgment, for instance), that this does not mean that the ECHR binds the EU as such, at least until the EU actually signs up to that Convention. However, the case law on the general principles frequently refers to the ECHR, and the CJEU has stated for years that it must ‘take account’ of the ECtHR’s judgments in that context.

Secondly, according to Article 6(2), the EU ‘shall’ accede to the ECHR. A draft treaty to that end has been drawn up, and is being reviewed by the CJEU; its judgment is expected later this year. If that ruling is positive, then the treaty would be opened for signature soon thereafter. It will need the unanimous support of all Member States (thus including the UK) to be approved, as well as approval at the national level. It could be argued that Member States are under a legal obligation to approve this accession treaty, in order to facilitate the obligation of the EU to accede to the ECHR. At the very least, it would be awkward if the UK ceased to be a party to the ECHR as a party but had to approve the EU becoming one.

Thirdly, Article 6(1) provides that the EU Charter has the same legal effect as the Treaties. While it is sometimes asserted that the UK has an opt-out from the Charter, due to an ambiguous Protocol on this issue (which also applies to Poland), this is simply not correct. In the NS judgment, the CJEU made clear that the UK was still subject to the Charter in the same way as other Member States. (It is arguably still possible that, due to the Protocol, the UK might not be fully bound by the Charter rules on social rights, but those rights do not generally appear in the ECHR).

The Charter contains many of the same rights as the ECHR, and refers to it several times. In particular, Article 52(3) of the Charter states that the Charter rights which ‘correspond’ to ECHR rights have the ‘same meaning and scope’, and this has been referred to several times by the CJEU. While a House of Commons committee recently suggested that UK legislation should attempt to override the Charter (see my criticism of this bad idea here), the government recently replied that it has a ‘duty to implement all EU law that applies to it’, apparently implicitly ruling out the idea of a change to national law in this respect. 

Taken as a whole, it is therefore right to keep in mind – as Joshua Rozenberg has pointed out – that in many respects EU law offers a stronger degree of legal protection for human rights than the ECHR. However, this is only relevant to the extent that the two areas of law cross over, ie a dispute falls within the scope of both EU law (otherwise the Charter doesn’t apply at all) and the rights set out in the ECHR.

So, while there is no formal requirement that a current EU Member State remain a party to the ECHR, and it would not be easy to enforce such a requirement if it existed, there is a very close relationship between the ECHR and EU law. The UK’s attempts to rid itself of the ECHR would be frustrated by the continued partial application of that Convention within the UK, wherever a dispute touched upon both EU law and ECHR rights. This would be exacerbated if the EU signs up to the Convention in the near future, but the EU’s attempts to this end will in turn be frustrated if the UK government or parliament refuses to approve the relevant treaty. Indeed, that treaty is drafted on the assumption that all of the Member States remain ECHR parties alongside the EU itself, and there would be complex questions to answer in the event that any cases arose concerning the UK, the ECHR and EU law once it were in force.

Taking all of these factors together, it is arguable that there is an implicit de jure legal requirement for all EU Member States to be party to the ECHR, otherwise the EU could not carry out its tasks effectively. Possibly the CJEU will clarify this issue in passing, in its upcoming judgment on the EU’s accession treaty to the ECHR. At the very least, there would de facto be enormous complications resulting from this scenario.

Amendment of domestic law

It is much harder to argue that merely reducing the impact of the ECtHR in UK domestic law is incompatible with EU membership. After all, the UK and Ireland did not give domestic legal effect to the ECHR until the last decade or so. (For an interesting discussion of the issues around parliamentary supremacy and human rights protection, see Gavin Phillipson and Mark Elliott).

There will, of course, still be complications if this route is taken. Every time that there is a link between EU law and the ECHR rights in the UK, it would be possible to enforce the ECHR rules by the EU law route, even if the UK parliament had legislated to ignore the ECtHR’s rulings. If the UK parliament then tried to legislate contrary to EU law to avoid this, there would be a direct conflict between the UK’s constitutional foundations and its obligations as a Member State of the EU.

Conclusions

It would of course be legally consistent for the UK to withdraw from both the EU and the ECHR, if that is what is intended. Some (like Eurosceptic MEP Dan Hannan) are open about their intentions in this respect. But there may be some who advocate withdrawing from the ECHR but not the EU as such. Frankly, that position constitutes either a cynical attempt to trigger an EU withdrawal by the back door (a sort of reverse Trojan Horse), or a negligent approach to this issue.  

Finally, one view is that the protection of human rights is undesirable, at least for the United Kingdom. For example, this argument is put by Dan Hannan, who asks the question “What have human rights ever done for the UK?” Indeed, he asks that question three times, so he obviously thinks it is a good one. But in fact, it is one of the stupidest questions in human history.

The purpose of human rights protection is clearly not to advance the interests of states, but rather to constrainthose states from mistreating individuals.  In particular, the ECHR (among many other things) guarantees a fair trial, protects against torture or other inhuman or degrading treatment, prevents arbitrary detention and ensures freedom of speech and privacy. While Hannan suggests that the UK could solve all those problems by itself, the fact is that it didn’t. Every individual who has won a case against the UK in the ECtHR had to try first (under the ECHR’s ‘exhaustion of domestic remedies’ rule) to obtain a remedy in the UK courts, but failed.

And although it is true that the UK (and some other ECHR signatories) does not breach the Convention as often as some other States, its continued participation in the system is valuable not only as regards protection of British citizens and residents, but as a contribution to supporting human rights protection across the rest of Europe, and indeed worldwide. The withdrawal of a large EU Member State from the world’s most sophisticated system for the protection of human rights would be bound to deal a significant blow to that system.

Barnard & Peers: chapter 2, chapter 9

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“So these lawyers walk into a Bar and … “ The Court of Justice liberalises cross-border access to the legal profession

Dr Julian Lonbay, Senior Lecturer,
Postgraduate Research Admissions Tutor, Birmingham Law School, University
of Birmingham

Introduction

Does EU law allow its citizens to seek the quickest possible means to qualify for a professional activity, even if it means leaving out large areas of training required by national law on access to the national profession that exercises that activity? The Court of Justice has addressed this issue recently in its judgment in Joined Cases C-58/13 and C-59/13 Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell'Ordine degli Avvocati di Macerata.

Background: Mobility rights for lawyers under Directive 98/5/EC

In Italy, as elsewhere across Europe, there is a special section of the roll of lawyers (elenco) for those lawyers emerging from elsewhere in the European Economic Area who are seeking to establish under their ‘home State professional title’ in Italy. This follows the implementation of Directive 98/5/EC to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. This Directive requires host State Competent Authorities to register and automatically recognise the professional titles of lawyers, whose professions are listed in Article 1(2) of the Directive. Such lawyers, once registered, have the right to exercise their profession in the host country, according to Article 5 of the Directive.

However, unlike other countries, in Italy 92% of the registered European lawyers are Italian nationals. The Consiglio nazionale forense (Italian National Bar Council) has established that nearly 3,500 such registered European lawyers were Italian nationals who had obtained their professional title elsewhere in the EEA. 83% of these lawyers had obtained their professional title, abogado, in Spain.

The via spagnola

Spain, until recently, imposed no requirement for post–university mandatory training before becoming an abogado. One simply had to have a Spanish law degree, or one recognised as equivalent to a Spanish law degree, and one could register with one of the eighty-three Spanish Bars as an abogado. [There is now a mandatory training period and State exam in Spain, the first of which was held in 2014.]

As many Italians with a laurea in guirisprudenza (Italian law degree) discovered, the Spanish authorities often considered the Italian Law degree to be equivalent to a Spanish law degree, and their degrees could be homologated more or less automatically. Armed with their new Spanish recognised diplomas they could enrol as lawyers in Spain, and thence return triumphant to Italy, where they were entitled (under Directive 98/5/EC) to practise as Spanish lawyers. Such practise can include dealing with matters of Italian law (subject to some deontological and other restraints). So instead of undergoing the required Italian period of legal practice and passing a State exam before being able to practice as an avvocato (Italian lawyer), which would take at least two years, they could qualify abroad more speedily, and then return as lawyers from another Member State and practice in Italy as such. 

An abuse of EU law?

The Italian Bars were concerned at this practice and considered it to be an abuse of European Law and argued even that it threatened the Italian national identity which should be protected by Article 4(2) TEU.

The Torresi cases were an opportunity to see if EU law could bear such an interpretation. The two Torresis returned from Spain qualified as abogados, and asked the Bar of Macerata (in Italy) to inscribe them on the special roll for registered European lawyers. The Bar Council of Macerata took no decision within one month (which was the time limit set by Italian law), and they then turned to the Consiglio nazionale forense(CNF) asking it to take action on their applications. The CNF was not convinced that Article 3 of the Directive could be used in such circumstances which it thought might constitute an ‘abuse of law’ and be contrary to Article 4(2) TEU

‘in that it permits circumvention of the rules of a Member State which make access to the legal profession conditional on passing a State examination, given that the Constitution of that Member State makes provision for such an examination and that the examination forms part of the fundamental principles of protecting consumers of legal services and the proper administration of justice?’

Two questions were referred to the CJEU by the Italian CNF. Preliminary issues of jurisdiction and capacity took up much of Advocate General Wahl’s Opinion (§§19-83) and more than half of the Grand Chamber’s ruling. The substantive legal issues dealt with aspects of the free movement of lawyers under Directive 98/5/EC and are dealt with below.

The following questions were referred to the CJEU:

‘1.      In the light of the general principle which prohibits any abuse of rights and Article 4(2) TEU, relating to respect for national identities, is Article 3 of [Directive 98/5] to be interpreted as obliging national administrative authorities to register, in the register of lawyers qualified abroad, Italian nationals who have conducted themselves in a manner which abuses EU law, and as precluding a national practice which allows such authorities to reject applications for registration in the register of lawyers qualified abroad where there are objective circumstances to indicate that there has been an abuse of EU law, without prejudice to respect for the principles of proportionality and non-discrimination and to the right of the person concerned to institute legal proceedings in order to argue a possible infringement of the right of establishment and, consequently, the possibility of judicial review of the administrative action in question?

2.      If the first question should be answered in the negative, is Article 3 of [Directive 98/5], thus interpreted, to be regarded as invalid in the light of Article 4(2) TEU, in that it permits circumvention of the rules of a Member State which make access to the legal profession conditional on passing a State examination, given that the Constitution of that Member State makes provision for such an examination and that the examination forms part of the fundamental principles of protecting consumers of legal services and the proper administration of justice?’

Were the Italian via spagnola practices an abuse of EU law?

Advocate General Wahl

The Advocate General first acknowledged that ‘abuse of law’ was a recognised concept in EU law. Citizens could not fraudulently or abusively rely on EU law. The concept of abuse had both objective and subjective elements that had to be assessed by national courts, but without compromising EU law.  Objectively EU law should not lead to the “wrong results” and ‘subjectively’ there should be no manipulations or artificial fulfilment of the conditions of EU law so that one could benefit from its provisions “abusively”.  

In this case the Advocate General the Italian practice in question showed the EU law was functioning correctly and achieving its correct aims. Nothing in Directive 98/5/EC indicated that the EU legislature wished to allow Member States to practise “reverse” discrimination against their own nationals. EU citizens were entitled to seek out the most favourable jurisdiction in which to qualify. This indeed was the rationale for “harmonising” the pre-conditions for exercising the rights conferred by Directive 98/5/EC.

Fraud

If there was a legitimate fear of fraud, then, in those rare cases, an investigation could be legitimate and Article 13 of the Directive, encouraging close collaboration between competent Authorities in the relevant Member States in such cases, should be used.

Italian national Identity (Article 4(2) TEU)

As to the threat to Italian national identity the Advocate General was perplexed, how did the fact that an Italian used EU law rights to become a Spanish lawyer and then practice in Italy as such, threaten Italy’s legal order and compromise Italy’s national identity? The Italian Government, at the hearing, had not supported the CNF on this point. The Torresi pair were not seeking access to the Italian legal profession itself, but to the Italian legal market as abogados. The Parliament, Council, Spanish and Polish Governments, intervening , had all considered that Italy maintained its rights to control access to the profession of avvocato. How could Italy deny an abogado right to practice in Italy? It was Spain’s competence to determine how anabogado qualified and it would strike at the heart of Directive 98/5/EC to allow such an interpretation.

Grand Chamber of the CJEU

The CJEU convened as a Grand Chamber to consider the case.  Having disposed of the preliminary jurisdictional issues they turned to the substantive questions of law. First they pointed out their earlier case law interpreting Directive 98/5 as a mechanism for the “mutual recognition of professional titles of migrant lawyers”.

§38
In that context, Article 3 of Directive 98/5 undertakes a complete harmonisation of the preliminary conditions required for the exercise of the right of establishment conferred by that directive, providing that a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification is obliged to register with the competent authority in that Member State, which must effect that registration ‘upon presentation of a certificate attesting to his registration with the competent authority of the home Member State’ …

Presentation of the home State certificate by the migrant lawyer was the sole condition applicable before registration in the host State. The CNF argued that this was an abuse of law, as they were evading the Italian training requirements.

Abuse of Law

The Court confirmed that abuse of law was a concept that EU law recognised, and that Member States could take measures to prevent nationals from ‘improperly’ circumventing national law. Echoing Advocate General Wahl they considered that the concept had both objective and subjective dimensions. If, despite formal observation of the conditions of EU law, the objectives of that law were not met then the objective condition for abuse of law was met. The subjective element required an intent to obtain an improper advantage from EU law by ‘artificially’ complying with conditions set down.

Applying this test to the Torresi cases they declared:

            §48

… it must be held that the right of nationals of a Member State to choose, on the one hand, the Member State in which they wish to acquire their professional qualifications and, on the other, the Member State in which they intend to practise their profession is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the Treaties …

It could not be an abuse of law as it was the intention and purpose of EU law to create the opportunity for an EU citizen with a degree to travel elsewhere, qualify there, and then return. The objective element of the abuse of law test was not met. EU law intended the result complained of. The fact that they were availing themselves of more ‘favourable’ legislation was not enough to meet the subjective element of the test.

Italian national Identity (Article 4(2) TEU)

The Court confirmed that EU law must ‘respect the national identity of Member States’ (Article 4(2) TEU). The Italian CNF argued that Article 3 of Directive 98/5/EC allowed a circumvention of Article 33(5) of the Italian Constitution as it allowed Italians to evade the national Bar exam, thus allowing circumvention of rules that formed part of the Italian national identity. The Court followed the Advocate General and confirmed that Article 3 of the Directive gave access to the legal market in Italy, not the Italian profession of avvocato (lawyer), therefore there was no evasion of national rules. They confirmed also that the Italian Government, at the hearing, had accepted this.

Commentary

The Court in this ruling is supporting a view that EU law allows for regulatory competition. There is a market formed of the national regulatory regimes for legal services of the Member States. Citizens and businesses can choose which regime to opt for. In doing so, it is true that future lawyers can leave out aspects of training that would have been required had they remained at home. But in making that choice there is no abuse, it was what EU law was designed to do. It is really no surprise that States are no longer fully sovereign within their territories. By the logic of the single market, borders are supposed to be disappearing.

In this case, EU law, decided by the Member States, has decreed that once admitted to the nominate legal professions, recognised in Article 1(2) of Directive 98/5/EC, then those with the relevant professional titles have the right to establish in another Member State, as set out in Directive 98/5/EC, under their home State professional titles. This means that it cannot be an abuse of law to exercise these rights. The purpose of the rule was to permit that very mobility.

Member States do not have to have identical rules for accessing the profession of lawyer. The content of education is a matter that is, in the main, reserved to Member States. Equally the range and depth of reserved legal activities varies across the EEA. So some States allow non-lawyers to practise in areas that, in other States, are reserved for particular legal professions. It is recognised that access to legal practice varies profession by profession, country by country, across the EEA. This causes complications when lawyers move across borders as their training and range of activities will be different. For the consumer of legal services this is great as they can have a wide choice of expertise to draw upon. For the regulators it is uncomfortable. They must co-ordinate with professional regulators from other Member States. They must learn and understand the regimes operating elsewhere. They must co-ordinate should disciplinary issues arise, and they must consult each other should complexities or misunderstandings arise when the migrant lawyer is seeking access to a host State legal market. All this interaction encourages pan-European engrenage (enmeshment) at many levels.

In the Torresicase the Consiglio nazionale forensedid not raise the issue of Article 10 of the Directive. This allows a migrant lawyer who has been practising law under the home State title for three years, to convert into an avvocato. Such lawyers must show that they have

effectively and regularly pursued for a period of at least three years an activity in the host Member State in the law of that State including Community law.

These lawyers are exempt from any aptitude test or adaptation period. Thus a few years down the line, the Italians who have taken the via spagnola will be easily incorporated into the Italian legal profession. This was probably not raised at the Court of Justice, as it had already indicated in its earlier case law that such access did not infringe the principle of non-discrimination.

In Luxembourg v Parliament and Council, Luxembourg had complained that Article 10 allowed the practice of national law by migrant EEA lawyers, without regard to any training requirements in national law. Luxembourg lawyers had to undertake a whole raft of training in national law, so why should the migrant lawyers be exempted? Furthermore could Luxembourg not protect its consumers of legal services against these untrained hordes of migrant lawyers? The Court found that there were sufficient safeguards in the EU legislation to protect consumers, and that national and migrant lawyers were not in exactly comparable situations, so discrimination had not arisen. The migrant lawyers had various restraints imposed upon them by the Directive itself. Thus there was no issue of ‘unequal treatment’ that EU law might have sanctioned.

The court, in Torresi , has re-affirmed the primacy of the Single market. It is there to benefit citizens and businesses in Europe, not to make life easy for the national regulators of economic activity. Future European lawyers can pick and mix their training and, once qualified, can decide where in Europe to practice. The forces unleashed by this liberalization fosters an ‘ever closer’ Union for providers of services, their consumers and also for the regulators of legal services.

Barnard & Peers: chapter 14

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Family Reunion for EU Citizens: a separated third country national family member of an EU citizen can acquire permanent residence status

Chiara Berneri, Lecturer at BPP Law School

Article 16(2) of Directive 2004/38 (the EU citizens’ Directive) states that third country national family members of EU citizens who have moved to another Member State can claim permanent residence rights (giving greater protection against expulsion, for instance if they claim social benefits) if they have ‘legally resided with’ that EU citizen ‘for a continuous period of five years’. Can they still invoke that provision, when, before the expiry of the five years’ period, the couple decided to live apart and cohabitate with different partners? Furthermore, can the third country national claim this right despite the fact that the continuous period of five years occurred before the transposition of the Directive?

The Court of Justice gave an answer to these crucial questions in a judgment of 10 July, Case C-244/13, Ogieriakhi v Minister for Justice and Equality.

The facts

In May 1999 Mr Ogieriakhi, a Nigerian national, married Ms George, a French national living in Ireland. From 1999 till 2001 the two lived together in Ireland. In August 2011 Ms George moved out and begun to reside with another man. Soon after Mr Ogieriakhi started to reside with Ms Madden, an Irish citizen with whom, after a while, he had a child. The divorce between Mr Ogieriakhi and Ms George occurred in January 2009 and in July of the same year Mr Ogieriakhi and Ms George got married. The issue Mr Ogieriakhi is complaining about goes back to 2007 when, after the deadline for transposition of Directive 2004/38 into national law (which was 30 April 2006), he applied for permanent residence in Ireland on the ground that he had completed a continuous period of legal residence for five years (between 1999 and 2004) as a result of his marriage with Ms George.

The Irish Minister for Justice and Equality refused his application on the ground that he did not exercise his right of residence under the Directive because there was no evidence of the fact that during the relevant period his wife was still exercising her right of movement and residence in Ireland. As a result of this refusal Mr Ogieriakhi was dismissed from his job because, according to the authorities, he had not any right of residence in Ireland. However, in 2011, the Minister for Justice and Equality reviewed its decision of 2007 and granted him a right of permanent residence following the Lassal judgment (according to which residency prior 2006 may, in principle, be regarded as meeting the criterion of a continuous period of residence of five years).

At this stage Mr Ogieriakhi brought an action for damages before the High Court in order to obtain compensation for the damage he suffered (dismissal from his job) as a result of the failure to transpose the Directive (relying on the case of Francovich and others). The national court found that, in order to succeed in the action, Mr Ogieriakhi had to show that at the time of his dismissal from his job he enjoyed a right of residence for a continuous period of five years. In order to assess whether this was the case, the national court stayed proceeding and asked the Court of Justice whether Art 16(2) of the Directive had to be interpreted as meaning that a third country national who, during the a continuous period of five years before the transposition date for the Directive, resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded a having acquired a right of permanent residence even though, during that period, the EU spouse decided to reside with another person and did not provide anymore the home in which the third country national lived.

The Court’s judgment

The Court started its reasoning by looking at Art 16(2) of Directive 2004/38. It pointed out that the current interpretation that should be applied to this article, following the Lassal judgment, is that the continuous periods of five years must be taken into account even when accumulated before the transposition of the Directive, when in accordance to the earlier law instruments that the Directive itself “codified, revised and repealed”.  In other words, in order to being able to rely on Art 16(2) for continuous residence accrued before the transposition of the Directive, the third country national has to satisfy both the conditions laid down in Art 16(2) of the Directive and the conditions laid down in the piece of legislation in force – in this case Regulation 1612/68 on the free movement of workers - during the period in which the actual residence occurred. 

According to this preamble, the Court first started to look at whether the conditions under the Directive were fulfilled. It pointed out that the acquisition of a right of permanent residence by third country national EU family members depends a) on the fact that the Union citizen himself or herself satisfies the conditions laid down in Art 16(1) of the Directive (namely having resided for a continuous period of five years in the host Member State) and b) on the fact that the third country national family member has resided with him or her for the above period. According to the Court requirement a) was indisputably satisfied as it was proved that throughout the relevant period Ms George fulfilled the condition laid down in Art 16(1).

As far as requirement b) was concerned, the Court found that the relevant issue to assess was whether the separation of the spouses during the period concerned precluded the fulfilment of the condition. To give an answer to this point, the Court relied on the cases of Diatta and Iida, which stated that what matters is the existence of the marital relationship, even if the spouses are separated. In this case, although Ms George and Mr Ogieriakhi lived separately with different partners, they were still married during the relevant period from 11 October 1999 and 11 October 2004 and that was enough to comply with Art 16(2) and not to make Mr Ogieriakhi lose his status of family member accompanying or joining a EU citizen in the host Member State.

Following the opinion of A.G. Bot, the Court stressed also another interesting point supporting its argument. The Court pointed out that interpreting Art 16(2) as being fulfilled even when the EU and third country national spouses are still married but live with other partners is consistent with the scope of the Directive itself. As a matter of fact, a more restrictive interpretation of Art 16(2) would not be consistent with Art 13 and 18 of the same Directive, which grant more favourable residence rights to third country nationals who divorcedfrom their EU citizen spouses (Art 13 is about retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. See in particular the conditions laid down by Art 13(2)(a)(b)(c)(d). Art 18 states that the family members to whom the conditions of Art 13(2) apply shall acquire the right of permanent residence after residing for five consecutive years in the host Member State).

Finally, the Court moved on to evaluate whether the conditions laid down in Regulation 1612/68 were fulfilled. In particular, the Court looked at whether the condition imposed by Art 10(3) – the EU worker having available for his or her family a family housing considered as normal for any worker employed in the same region- is satisfied in case the EU worker and the third country national family member live separately and the new house of the latter is neither supplied nor provided for by the EU worker (note that the citizens’ Directive has since removed this condition). To answer this question the Court followed the Advocate General’s opinion and relied on the Diattacase, once again specifying that there is no implied requirement for the family to live permanently under the same roof. 

Furthermore, still in line with A.G. Bot, the Court referred to the case of Commission v Germany (which had interpreted Article 10(3) of that Regulation) and recalled that the requirement to have available housing regarded as normal applies only as a condition under which each member of the worker’s family is permitted to come and live with him or her. This means, as A.G. Bot explained more extensively in the opinion, that if the housing regarded as normal at the beginning of the cohabitation does not fulfil this requirement anymore as a result of a new event- such as in this case the separation of the couple and the new relationship of Ms George with another man- this cannot lead to discrimination between Member State’s nationals and nationals of other Member States.

In light of these considerations the Court concluded that even when the spouses decided to separate and reside with new partners, the third country national family member who has resided for a continuous period of five years in a Member State as the spouse of a EU citizen can acquire the right of permanent residence even if the period of residence occurred before the transposition of the Directive.

Finally, on state liability, the Court concluded that the simple question for preliminary ruling on a matter concerning the transposition of EU law must not, alone, be considered a decisive factor in determining whether there was an obvious infringement of EU law on the part of the Member State.

Comments

If we look at its outcome, this can be considered a good judgment. As a matter of fact, the Court of Justice ended up clarifying the scope of Diattaby specifying that a third country national can be granted the right of permanent residence not just simply when he is separated and not living anymore with the EU citizen but even when they both cohabit with other partners. The broadening of Diatta can only be welcomed, especially by those who believe that the state should not be interested in how a family decides to arrange its family life (for example whether they prefer to live together or not) as long as the marriage bond is not broken. Although the Court referred back to spouses who were separated before the deadline to transpose the citizens’ Directive, its interpretation is still relevant to those who were separated after that deadline, in light of its reference to the Iida judgment (which had already applied the Diattajudgment to the definition of ‘spouse’ in the citizens’ Directive) and its constant case law (see the Metock judgment) insisting that the Directive does not lower standards as compared to the previous legislation.

On the other side, the reasoning proposed by the Court lacks of clarity in some points. This is particularly evident when the Court refers to Commission v Germany. The wording of the Court does not immediately make clear the reason why this case is relevant in this context. As a matter of fact, it is by looking at the more extensive explanation of the Advocate General that it is possible to understand its relevance in the circumstances at stake (see the above discussion).

It is also worth mentioning that the Court lost a chance to specify clearly the meaning of Art 16(2) of the Directive, particularly with regard to the word “with”. According to the Advocate General the word “with” should not be interpreted literally. Hence, it does not mean that the third country national must have lived together with the EU citizen for the entire period of five years but it is enough that he or she has accompanied or joined the EU citizen in the host Member State, despite the fact that they decided [not?] to live together for the entire period of five years. This specification would have been particularly useful if we consider that cases not necessarily involving third country national spouses will be possibly referred to the Court of Justice.

As a matter of fact, as things stand now, the Court will be easily able to rely on Diatta, if needed, to state that a spouse should not necessarily live together with the EU citizen in order to acquire the right of permanent residence. However, as far as other family members are concerned, a similar interpretation of Art 16(2) will result in the same outcome: no family member has to live together with the EU citizen in order to acquire the right of permanent residence in the host Member State.

To conclude, despite these margins for improvement, this judgment should be considered a good and, in a way, totally predictable judgment as it falls within the lines traced already by the Court in Lassal, Diatta and Commission v Germany. The interesting rationale upon which Ogieriakhi is based is, as A.G. Bot clearly pointed out in the opinion, to promote social cohesion and integration not just of the EU citizen but also of the third country national family member. This is the key purpose of the Directive that the Court should bear in mind for future reference in order to apply the same rationale to potential similar cases.

Barnard & Peers: chapter 13 

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The EU Returns Directive and the Use of Prisons for Detaining Migrants in Europe

Izabella Majcher, Researcher at Global Detention Project / Global Migration Centre and PhD candidate in International Law at the Graduate Institute of International and Development Studies is Geneva.

Can immigration detainees be held in prisons? Can they be confined alongside ordinary prisoners? Last Thursday 17 July 2014, in its decisions on the joint cases of Bero & Bouzalmate (C-473/13 & C-514/13) and the case of Pham (C-474/13), the Court of Justice of the European Union (CJEU) rendered its opinion on this practice. These judgments are the ninth and tenth times that the Court has interpreted the provisions of the EU Returns Directive, the previous one being the Mahdi case, which was decided in early June 2014.

Most of the Luxembourg case law on the Returns Directive has dealt with pre-removal detention. The Court has ruled on the length of detention (Kadzoev case), the relation between (administrative) pre-removal detention and criminal incarceration (El Dridi and Achughbabian cases), detention during asylum procedures (Arslan case), and procedural standards on reviewing and extending detention (G&R and Mahdi cases). In the Bero & Bouzalmate and Pham cases, the Court interpreted the Directive’s provisions on conditions of detention for the first time.

Questions referred to the CJEU for a preliminary ruling

The questions referred to the CJEU addressed the places used for detention in Germany. It is regulated under article 16(1) of the Returns Directive, which provides that:

“Detention shall take place as a rule in specialized detention facilities. Where a Member State cannot provide accommodation in a specialized detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.”

All three requests for a preliminary ruling concerned pre-removal detention carried out in prison rather than a specialized immigration detention facility. Ms. Bero was detained alongside ordinary prisoners in Frankfurt prison (in Hesse federated state) for almost a month, while Mr. Bouzalmate was confined in a separate area devoted to immigration detention in Munich prison (in Bavaria federated state) for three months.

In Germany, immigration detention falls under the competency of federated states (Länder). The reason Ms. Bero and Mr. Bouzalmate were confined in jails was that Hesse and Bavaria federated states (and several others) do not dispose of special immigration detention centers. Such practice is based on the German Residence Act. Its section 62a(1), which transposed article 16(1) of the Directive, sets out that:

“As a general principle, custody awaiting deportation shall be enforced in specialized detention facilities. If a Land has no specialized detention facilities, custody awaiting deportation may be enforced in other custodial institutions in that Land; in such cases the persons in detention awaiting deportation shall be accommodated separately from prisoners serving criminal sentences.”

In the joint cases of Bero & Bouzalmate, the referring courts asked the CJEU to determine whether under article 16(1) of the Returns Directive a member state is required, as a rule, to detain non-citizens pending removal in a specialized detention facility if such facilities exist in only part of the federated states of that member state (Bero & Bouzalmate, § 13 and 21).

  

Likewise, the Pham case concerned a pre-removal detention of over three-months being carried out in prison. However, Ms. Pham signed a written declaration in which she consented to being confined in a prison together with ordinary prisoners because she allegedly wanted contact with her compatriots who were detained there. The German Federal Court of Justice referred to the Luxembourg judges a question whether it is consistent with article 16(1) of the Returns Directive to confine a migration detainee together with ordinary prisoners if they consent to such accommodation (Pham, §13).

The CJEU’s decisions

In both judgments the Court followed the Advocate General Bot's Opinion delivered at the end of April 2014. Accordingly, a member state cannot rely on the fact that there are no specialized detention facilities in a part of its territory to justify keeping non-citizens in prison pending their removal (Bero & Bouzalmate). The same rule applies even if the migration detainee has consented to being confined in penitentiary (Pham).

In the joint cases of Bero & Bouzalmate the Court held that article 16(1) of the Return Directive requires a member state, as a rule, to detain migrants pending removal in a specialized detention facility even if the member state has a federal structure and the federated state competent to decide upon and carry out such detention under domestic law does not have such a detention facility (Bero & Bouzalmate, § 33). This conclusion was based principally on two arguments.

At the outset, the Court observed that the first sentence of article 16(1) sets out the principle that pre-removal detention is to take place in specialized detention facilities. The use of prisons allowed under the second sentence of article 16(1) represents a derogation from that principle, which, as such, shall be interpreted strictly (Bero & Bouzalmate, §25).

The interpretation of that second sentence was focused on in the Opinion of the Advocate General. The Advocate General observed that there were significant differences in the wording of article 16(1) between the different language versions. Pursuant to the English version, migrants may be held in prisons if member states cannot provide accommodation in a specialized centre. In contrast, the German version allows member states to use prisons if there are no specialized facilities. According to the Advocate General, the German version of the second sentence of article 16(1) was incorrect. It would allow states to rely on the lack of specialized facilities to derogate from the principle laid down in the first sentence and thus deprive it of all effectiveness (AG’s Opinion, § 63-80).

Secondly, the Court addressed the federal structure of the country. It held that the obligation laid down in the first sentence of article 16(1) requiring detention to take place as a rule in specialized detention facilities is imposed upon member states as such, regardless of the states’ internal administrative or constitutional structures. Thus, the fact that in certain federated states of the member state, the competent authorities have specialized facilities at their disposal cannot amount to sufficient transposition of the Returns Directive if the competent authorities of another federated state of that member state lack such facilities (Bero & Bouzalmate, §30).

The Court’s conclusions in Bero & Bouzalmate were further developed in the case of Pham. The Court ruled that the second sentence of article 16(1) of the Directive does not allow member states to detain migrants pending removal in prison together with ordinary prisoners even if they consent thereto (Pham, § 24).

More precisely, in the case where the derogation in the second sentence of article 16(1) applies, i.e. where a member state cannot provide accommodation in specialized detention facilities and resorts to prison, immigration detainees shall be kept separated from ordinary prisoners. The Luxembourg judges observed that under the Directive, the obligation for migration detainees to be kept separated from ordinary prisoners is not coupled with any exception. Moreover, they stressed that the separation requirement is more than just a specific procedural rule for carrying out detention in prisons and constitutes a substantive condition for that detention, without compliance of which such detention would, in principle, not be consistent with the Directive (Pham, § 17, 19 and 21).

Comments

Ever since the adoption of the Returns Directive in 2008, the terms of article 16(1) have warranted an interpretation. The Court’s judgments in Bero& Bouzalmate and Pham are thus welcome. What impact will they have on the places where migrants are detained across Europe? Several points need to be fleshed out.

First of all, the judgments will obviously trigger changes to the German practice of using prisons for immigration detention purposes. Currently, as the recent report by the Pro Asyl describes, in ten out of sixteen federated German states (Baden-Württemberg, Bavaria, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Saxony, Saxony-Anhalt, and Thuringia) migration detainees are held in prisons. However, in line with the judgment in Bero & Bouzalmate, a federal state like Germany is not obliged to set up specialized centers in each federated state. However, it shall ensure via, amongst others, cooperation agreements between federated states that the competent authorities of a federated state that does not dispose of such facilities can place migrants in specialized facilities located in other federated states (Bero & Bouzalmate, §31). At present the ten federated states that do not have specialized centers use some sixteen prisons with the total immigration detention capacity exceeding 800. To compare, besides airport detention facilities, there are only four specialized detention facilities in Germany—Berlin-Köpenick, Eisenhüttenstadt, Ingelheim, and Rendsburg—with a combined capacity of around 450.  

The Court’s reasoning in Bero & Bouzalmate that the absence of specialized detention facilities in a federated state cannot in itself justify confining migrants in prisons in that federated state is of relevance to other federal states, like Austria and Switzerland (which is bound by the Returns Directive as a Schengen associate). Arguably, it can have a broader application and impact practice based not only on the administrative structure of a state but also the geographical location of detention facilities. This would be in line with the Advocate General’s view that if a country has a specialized detention facility in its territory, with sufficient detention capacity, it shall order the detention of the person concerned in that facility, the geographical situation of that facility being of little importance (AG’s Opinion, §144). Thus, it appears that authorities would not be able to rely on the derogation clause in the second sentence of article 16(1) and hold migrants in prison, if there is available space in a specialized facility, even if it is located far away.

When would a state thus be able to rely on the second sentence of article 16(1) of the Returns Directive? When can authorities be justified in claiming that they “cannot” detain migrants in a specialized detention facility and instead hold them in a prison? In his Opinion, the Advocate General has explained when this derogation clause might be used. He reads it in conjunction with article 18 of the Directive. Under article 18(1) the Directive explicitly allows states to derogate from article 16(1) in “emergency situations,” i.e. the situations in which “an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities” of a member state. According to the Advocate General, it is possible to infer from the wording of “emergency situations” related to the influx of migrants under article 18(1) the nature of other circumstances that states may invoke to rely on the derogation clause in article 16(1). Thus, a member state may order detention in prison “only if there are exceptional and legitimate grounds, such as those alleging necessity, showing uncontestably that the weighing up of interests requires that solution” (AG’s Opinion, § 124-136).

The judgments in Bero & Bouzalmate and Pham, read together with the Advocate General’s detailed views, therefore considerably restrict the use of prisons for confining migrants. However, as the research by the Global Detention Project reveals, police stations rather than prisons are most frequently used in Europe as a substitute for specialized detention facilities. This practice has been regularly criticized by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT maintains that since the conditions in police stations are usually inadequate for prolonged periods of detention, such premises should be used only for very short periods of time. Yet, in reality states tend to apply their usual maximum time-limits on detention to migration detainees held in police stations. Is this practice compatible with article 16(1) of the Returns Directive, which is silent with respect to the use of police stations? Can the Court’s decisions in Bero & Bouzalmate and Pham be applied by analogy? Arguably, this widespread practice of the Directive’s member states needs to be assessed by the Luxembourg judges.

Finally, the Court’s stance in Pham on the separation obligation clearly puts the Directive’s provisions in line with international human rights standards. For the Court, it represents a “substantive condition” (rather than merely a procedural one) for detention of migrants carried out in prison, without compliance of which such detention, would, in principle, not be consistent with the Directive. This entails that when a state cannot ensure separated accommodation in prison, it would not be able to invoke the derogation clause under article 16(1). However, what does the separation obligation require? Does it suffice that migrants have cells for their own (but may have contact with other detainees during meal or recreation time)? Or, shall authorities set up separate units for immigration detainees to comply with that obligation? The Court does not explain it. Without clarity on the Court’s understanding of the separation principle it is difficult to assess the practice across the EU. In fact, the European Commission’s recent communication on an EU return policy points out that the domestic legislation of nine countries does not fully require a “strict separation” of migration detainees from ordinary prisoners. Arguably, the Advocate General’s views should be followed according to which the separation requirement entails “the strict separation of migrants from ordinary prisoners by establishing a separate unit completely isolated from the rest of the prison, offering no possibility of communication with persons convicted or remanded in custody” (AG’s Opinion, § 100).

Photo Credit: © www.migreurop.org/Sara Prestianni

Barnard & Peers: chapter 26

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