Opinion 2/13 on EU accession to the ECHR: looking for the silver lining

Catherine Barnard, Trinity College, Cambridge

Introduction

Opinion 2/13 is a judgment for lawyers, not politicians, albeit one with major political ramifications. It engages in a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), as well as key principles of EU law. This does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in (2015) 52 Common Market Law Review 1); a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to adopt a more positive reading of the Opinion. My remarks focus on three points:

·         Was there a failure to see the wood for the trees in the negotiations?

·         Was Opinion 2/13 really a case of judicial vanity?

·         What are the effects of Opinion 2/13 on relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the trees in the negotiations?

The submissions of the Member States and the AG’s Opinion focused on the content of the Draft Accession Agreement: are the various clauses of the agreement compatible with EU law? But I think the Court felt that the focus on the nuts and bolts of the DAA meant that the negotiators failed to look at the bigger picture, namely (1) that the EU is not a state; and (2) that EU law has special characteristics (the language of Article 1 of Protocol 8[1]) which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of the soft furnishings of the house – the carpets and curtains - rather than on the structural soundness of the entire edifice. But the Court was much more concerned with the edifice rather than the soft furnishings. This is why it devoted a substantial part of its Opinion(paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which it thought risked being undermined by accession to the ECHR. It identified these specific characteristics as supremacy, direct effect, conferral of powers, institutional structure[2], as well as the principle of mutual trust[3] and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of the autonomy of EU law - that is its autonomy from both the laws of the Member States and international law.[5]The Court said that the autonomy of EU law, together with its specific characteristics, were preserved by the judicial system intended to ensure consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to be considered.

Having set out its stall, the Court was, I think, trying to indicate that anything in – or about - the Accession agreement which jeopardised this core contravened EU law. Putting it another way, the discussion in paragraphs 153-177 was not put there simply to teach EU lawyers to suck EU eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider not just the points raised by the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps to explain the focus on the three substantive issues: Article 53, mutual trust and Protocol No. 16 which had featured little in the submissions and the AG’s Opinion. At first sight, it is particularly surprising that Protocol No. 16 was considered at all. It allows national courts of last resort of states signed up to the Protocol to make ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8]It was concluded after the DAA had been agreed and it has not yet been brought into force. Yet the mere existence of Protocol 16 gave the Court the opportunity to express its views on the centrality of Article 267 TFEU to the EU system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating the DAA had failed to consider this important constitutional ‘wood’, focusing too much on the ‘trees’. Addressing the concerns about the potential infringement of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the principle of mutual trust and Protocol No 16, was essential before accession could take place.

Was Opinion 2/13 a case of judicial vanity?

Critics of Opinion 2/13 argue that the Court of Justice was determined to protect its supremacy at all costs. Despite the fact that all intervening Member States, the AG (with reservations), and the Presidents’ joint communication indicated support for the DAA, the Court cussedly did the opposite. Even if this narrative is correct (which I doubt - see below), I actually think there would be some justification for the Court refusing to surrender itself so absolutely to the control of a ‘higher’ court. Compared to the US Supreme Court, it is still a teenager as a court. It continues to deal with threats to its supremacy from the Constitutional Courts of the Member States. It has, more or less, successfully held off those challenges. It certainly saw off a challenge to its supremacy from the power of the UN in Kadi I.[9]There, its identification of the autonomy of EU law was largely welcomed: David was seeing off Goliath. The situation is different now. The CJEU has now assumed Goliath-like proportions. Autonomy may now be mistaken for hubris, arrogance, disdain for its sister court. However, to the Court of Justice, subordination to a ‘higher’ court might suggest the Court is not invincible. It has always been very sensitive to this possibility.

However, I am not sure that the narrative of judicial vanity is correct. After all the Court does expressly concede that EU law - and the Court of Justice - are subjecting themselves to external review.[10] It points out that:

 It is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice, and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the control mechanisms provided for by the ECHR, particularly the ECtHR, as Article 3(6) of the draft agreement provides and as is stated in paragraph 68 of the draft explanatory report.

The Court also recognises that there is an obligation on the EU to accede to the Convention. However, I think the structure of paragraphs 160-162 is telling. The emphasis is not on the obligation to accede under Article 6(2) TEU, first sentence. Rather, the Court emphasises that accession is subject to limitations: accession must ‘not affect the Union’s competences as defined in the Treaties’ (Article 6(2) TEU, second sentence), nor must it interfere with the specific characteristics of the EU (Protocol 8, protocols being of equal value to the Treaties). As the Court put it at paragraph 164:

 For the purposes of that review, it must be noted that, as is apparent from paragraphs 160 to 162 above, the conditions to which accession is subject under the Treaties are intended, particularly, to ensure that accession does not affect the specific characteristics of the EU and EU law.

This is a subtle change in emphasis but an important one. Yes, Article 6(2), first sentence, suggests an absolute obligation to accede. However, when viewed through the lens of Protocol 8 and the second sentence of Article 6(2) TEU, the Treaty provided not an absolute obligation to accede but a conditional one.[11]I think this is the line the Court took.

What are the effects of the Opinion on relations with the ECtHR?

For proponents of the thesis of CJEU vanity, the effect of the Opinion on relations with the ECtHR is disastrous. The fact that the Opinion came out just before Christmas – not a bad time to bury bad news – might support the idea that the Court of Justice had something to hide.

Again, a closer look at the judgment might refute, at least in part, this allegation. First, at no point did the Court criticise the European Court of Human Rights or its case law; its ire seems to have been directed at the EU’s negotiating team.

Second, as Peers has helpfully digested, the Court has clearly identified areas for improvement. It has thus provided a drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items are relatively straightforward to address. Some, especially those concerning the CFSP, mutual trust,[12]Article 53 and Protocol 16, may not be. And the logistics of renegotiating the DAA in the face of a number of intransigent states both in the EU and outside, gives considerable pause for thought.

But the fact is that the Court of Justice did not close the door on EU accession to the ECHR. Leaving it ajar, yes, but not slamming the door shut completely. And the Court of Human Rights is a sensitive institution. While its first reaction might be disappointment (see the President’s remarks on the opening of the judicial year), judicial comity will lead the judiciary in both Courts to engage – probably privately – with each other.

Conclusions

A number of commentators have been tremendously critical of the Court’s decision. Their disappointment is understandable. There was so much hope associated with accession. The effect of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a body blow to the ECtHR and to (re)assert the CJEU’s own supremacy. In this case the judgment is very much a political one dressed up in lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of EU law, which it felt had not been adequately recognised in the negotiation process. In this case the judgment is very much a legal one.

But there may be a silver-lining. The Court of Justice has put down a marker that it thinks that it can ‘do’ human rights. It may now have to prove this. There may be more decisions like Abdida,[13]delivered by the Grand Chamber on the same day as Opinion 2/13 (discussed by Peers), where the Court adopts a pro-human rights line (sweetened by numerous references to the case law of the European Court of Human Rights). Politically this may be very important, not only to start the process of bridge building with the Court of Human Rights, but also to send out a message to its own (troublesome) constitutional courts. For what is sauce to the (CJEU) goose is also sauce for the gander of the national constitutional courts.

 

These remarks were first delivered to a seminar organised by CELS, Faculty of Law, University of Cambridge, 4 February 2015.

 

Barnard & Peers: chapter 9

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[1]‘The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "European Convention") provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union's possible participation in the control bodies of the European Convention;(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’

[2] Paras. 165-6.

[3] Para. 168. See also K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, 30 Jan. 2015.

[4] Para. 169.

[5] Para. 170.

[6] Para. 174.

[7] Para. 176. See also Opinion 1/09, ECLI:EU:C:2011:123.

[8] Art. 1 says ‘Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.’

[9] Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461.

[10] Para. 182-5.

[11] For hints of that view, see Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental freedoms, May 2010, paras. 4-5

[12] See further A. Kornezow, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13) 12 CYELS 227.

[13] Case C-562/13 ECLI:EU:C:2014:2453.

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The CJEU confirms short-term free movement rights for EU citizens’ third-country family members

 

Steve Peers

Today’s important CJEU judgmentin McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens to visit the UK?

The judgment concerned a dual citizen of the UK and Ireland living in Spain, with his third-country national wife and their joint child (also a dual British and Irish citizen). UK law requires the family to obtain a ‘family permit’ every time they seek to visit the UK. As discussed in my previous comments on the Advocate-General’s opinion in this case, issues like these would normally only arise for travel between Schengen and non-Schengen states, since anyone holding a residence permit from a Schengen state is free to travel for short periods to other Schengen states without needing a visa, and there are normally no checks at the internal borders of Schengen states.

The EU’s citizens’ Directivestates, among other things, that third-country national family members of an EU citizen who lives in another Member State must be given a ‘residence card’ to prove their legal status. Such a card exempts them from any visa requirement that would normally apply when they visit another Member State, if they visit that State along with the EU citizen family member. There’s no reference to any possibility to demand a ‘family permit’, or anything resembling it. In this case, Mrs. McCarthy had a residence card, so at first sight the UK can obviously not insist upon a de facto visa requirement.

However, the UK sought to justify its policy for two reasons: in order to avoid the abuse of EU law, and in order to apply a special protocol on border controls, which allows the UK (as well as Ireland) to check people crossing the borders between the UK and other Member States to determine whether they have EU law free movement rights or not.

The Court’s judgment first of all examines whether the citizens’ Directive can apply. It ruled that Mr. McCarthy and his wife were (quite obviously) covered by the citizens’ Directive when in Spain. But did the Directive apply when they come to the UK? The Court ruled that it did, since the relevant clause in the Directive (Article 5, on entry) made no distinction between the Member State of the EU citizen’s nationality and other Member States.

Next, the Court ruled that the ‘abuse of rights’ rule, which is set out in an express clause in the Directive (Article 35) could not justify the UK’s action. According to the Court, abuse could only be assessed in individual cases, rather than as regards whole categories of persons. Finally, the Court ruled against the UK’s attempt to justify its measure based on the borders Protocol, since that Protocol only allows the UK to check whether individuals have the right of entry under EU free movement law, not to deny them the right of entry once they qualify for free movement rights. The judgment won't be applied in practice until the UK courts give a further ruling, now that the case returns to the national courts - unless the UK government (improbably) gives effect to the judgment sooner.   

Comments

I should first of all point out, in light of some hysterical press reports, what this judgment does not do. It does not allow all UK citizens to bring their third-country national family members into the UK. For those UK citizens who reside in the UK, there’s nothing in this judgment to change the traditional position that only national law (and so the UK’s restrictive rules on family reunion) applies to their situation, rather than EU law. Simply put, the McCarthy family lives in Spain, not the UK.

There is a modest impact upon those UK citizens who are temporarily living in another Member State with their third-country national family member, planning to return to the UK later on, having used EU free movement law in the meantime to live with their non-EU family members. This is traditionally known in the UK as the ‘Surinder Singh’ route, following an earlier judgment of the CJEU by that name (for Dutch citizens, it’s known as the ‘Belgian route’).

Today’s ruling will make it easier for those British citizens (as well as those who intend to live in another Member State permanently) to visit the UK with their third-country family members. It would only apply to them if their family members have obtained a residence card from their host Member State, though. And it isn’t relevant for their family’s eventual return to the UK: that is still hindered in practice by UK rules which are breach in of the CJEU’s ruling earlier this year which clarified the position of such ‘returnees’ (that ruling is discussed further here).

What about citizens of other Member States who want to live in the UK with their third-country family members? The ruling really has little to do with them, since it only concerns short-term visits. It would be relevant to (say) a German woman with a Turkish husband living in Spain, if the husband has a residence card from Spain and wants to visit the UK with his wife. But it isn’t directly relevant to those who seek to settle in the UK, although in a future case the Court might apply it by analogy. EU free movement law is already generous to EU citizens who seek to move to another Member State with their third-country family members; but this judgment does not make it any moregenerous.

Overall, today’s ruling is a welcome and convincing interpretation of the free movement rules. It’s quite obvious that the EU citizen’s Directive does not allow anything like a ‘family permit’ requirement as a condition before waiving the visa requirement, since that would negate the whole point of that waiver. The Court simply (and correctly) dealt with the point about the ability of dual citizens of the UK and Ireland to rely on the rules in question, by distinguishing between short-term visits and longer stays. It’s also obvious that the UK’s Borders Protocol is subject to substantive free movement law, and only gives the UK the right to check if EU citizens and their family members have free movement rights, not to deny them entry if they do.

This brings us to the point about the ‘abuse of rights’. The Court’s judgment follows its traditional case law in holding that this principle can only be applied to individual cases, and it gives many convincing reasons for applying this interpretation in the context of the citizens’ Directive. However, the UK government demonstrated that there are a sufficiently large number of cases of fraud of residence cards to be concerned about. Such abuses of free movement law cannot be defended in principle, and undermine the legitimacy of the free movement regime for the large majority of British (and other EU) citizens who exercise free movement rights honestly. To address this concern, all Member States should agree in principle to introduce secure residence cards as soon as possible.  

Barnard & Peers: chapter 13

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Bringing Data Protection Home? The CJEU rules on data protection law and home CCTV

 

Lorna Woods, Professor of Law, University of Essex

 

Does EU data protection law apply to home CCTV cameras? The CJEU addressed that issue yesterday in the judgment in Case C-212/13 Ryneš v. Úřad pro ochranuosobníchúdajů. In its judgment, the Fourth Chamber of the Court agrees with the Advocate-General's  opinion (discussed here), although it avoids some of the difficult questions hinted at in that opinion.

This judgment is significant in two ways. First, it has potentially broader application than just to fixed surveillance devices and could indicate the way data recording devices are used in public spaces even by private individuals.  Second, it forms part of a train of judgments highlighting the significance of data protection for individuals. This significance is perhaps reflected in the fact that eight member States made submissions before the court.

 

Facts

Mr Ryneš and his family had for several years been subjected to attacks by persons whom it had not been possible to identify and the windows of the family home had been broken on several occasions.  As a result, he installed CCTV cameras under the eaves of his house.  The camera was installed in a fixed position and could not turn; it recorded the entrance to his home, the public footpath and the entrance to the house opposite.  The images were recorded to hard drive, and subsequently over-written by new recordings.  A further attack took place but it was possible to identify the suspects because of the CCTV.  The recording was handed over to the police and relied on in the course of the subsequent criminal proceedings.  One of the suspects challenged the use of CCTV in this way: arguing that Mr Ryneš had not complied with the Czech rules implementing the EU Data Protection Directive (DPD). Mr Ryneš essentially argued that the matter did not come within the DPD because of the application of the ‘household exception’ in Article 3(2) DPD. It was the scope of that provision that was referred to the CJEU by the national court.

 

Judgment

The Court began by confirming that CCTV surveillance in principle constitutes the processing of personal data so far as it makes it possible to identify the person concerned [paras 22-25].  The Court then turned its attention to the question of whether the situation escaped the application of the DPD in so far as it is carried out ‘in the course of a purely personal or household activity’ for the purposes of the second indent of Article 3(2) DPD.

The Court emphasised that the purpose of the DPD is to ensure a high level of protection for personal data – seen as part of an individual’s privacy and in so doing referred to Google Spain and Google (C‑131/12), and that, following IPI (C‑473/12, para 39) and Digital Rights Ireland and Others(C‑293/12 and C‑594/12, para 52) restrictions on data protection must apply on so far as strictly necessary [para 28].  Further, the DPD must be construed in the light of the Charter. These factors meant that Article 3(2) DPD should be construed narrowly [para 29]. In the Court’s view this approach followed also from the wording of Article 3(2) in any event: the use of the word ‘purely’ indicates a narrow range of circumstances. Following the reasoning of the Advocate General, the Court held that:

‘To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity for the purposes of the second indent of Article 3(2) of Directive 95/46.’ [para 33]

While the DPD applies, the Court noted the possibility of the data controller’s legitimate interests and other possible exceptions in the Directive being taken into account [para 34] although the Court did not elaborate further on such balancing in this instance.

 

Comment

This case is not the first case that has considered the scope of the ‘household exception’: Lindqvist (C-101/01) was the first, which held that the ‘household exception’ did not apply to the posting of information on a web site. According to the Court then, the exception clearly did not apply because the making available of information to an indefinite number of people was not an activity carried out in the course of the private or family life of an individual.  The reasoning here is not clear, and is replete with assumptions (what is the position of an on-line personal diary, for example?). It is perhaps because of the lack of clarity that the Court here did not cite Lindqvist– a rather noticeable omission otherwise.  Rather it, like the Advocate-General before it, went back to first principles about the value and status of data protection. This is the beginning of a stream of data protection cases – arising in very different circumstances – in which the Court has repeatedly ascribed a high value to data protection and the protection of privacy. These cases then should be seen not as isolated, but as part of consistent body of rulings on this point.  What was clearer from the Opinion in this case was the fact that this high value ascribed to the protection of personal data applies as between individuals, as well as constraining the activities of the State.

 

While it might be standard practice to view exceptions as to be construed narrowly, the Court does not give us much information as to how to define this in practice. What we have instead is the assertion that something that impinges on a public space cannot be ‘purely’ private. Balancing of interests takes place as a consequence within the framework of the DPD, essentially by virtue of Article 7(f)DPD, which allows data processing to take place in the legitimate interests of the data controller (in this case, the homeowner interested in protecting his security), balanced against the interests of the data subject (the criminal suspects in this case), rather than by determining whether the DPD applies or not.  This approach probably allows for a more subtle approach to the question of respective interests, although as Article 29 Working Party (the advisory body made up of national data protection supervisors) have noted there is not much consistency across the Member States on how to interpret Article 7(f) DPD (Opinion 06/2014).  There has been concern that, given the openness of its wording, Article 7(f) could be used to undermine the effectiveness of data protection.  Here, presumably protection of private property would weigh heavily (the Article 29 Working Party give security as an example of a ‘legitimate interest’), though the balancing of interests might be different in the context of someone passing in the street and someone visiting the house opposite.

 

This then leads us to the question of when else the principles in Ryneš might apply.  The obvious example is devices capable of recording personal data in public spaces. In addition to CCTV, drones and body worn video used by local authorities and the police in the law enforcement context, we should think here about mobile phones with cameras and devices such as Google glass, which have already been flagged up as potentially problematic in regulatory terms. While Google may have taken steps to improve privacy by design in this device, this does not absolve users from responsibility under the data protection regime if it applies to them.  If we take the approach that even partial public use of a fixed CCTV system cannot benefit from the household exception, still less would a portable, possibly inconspicuous device the purpose of which is uncertain.  The reasoning seems stronger still if we consider the possible onward use of such data – via a website for example (though note the Article 29 Working Party’s view on social networking sites in Opinion 5/2009)– taking into account the view in Lindqvist.  Here it is less clear to see that the legitimate interests of the data controller (ie the person using the device to record and store personal data),assuming the processing were to be deemed ‘necessary’ to pursue that interest, would weigh heavily against a high level of protection for data protection even as between individuals (see views of Article 29 Working Party on freedom of expression arguments in this context).

 

How might this judgment apply to specific cases? A parent would have a legitimate interest in photographing or filming his or her children or friends, although there might be constraints (taking account of the Peck v UK judgment of the European Court of Human Rights, where Article 8 ECHR was breached after CCTV footage of an attempted suicide was shown on national television) on how much such footage might be shared in future. Indeed, broad sharing of those images (for example uploading to a website without privacy protection as in Lindqvist) could constitute an act of processing outside the household exception, which should therefore comply with DPD requirements too.  Photographs taken within the context of private and family life but then used by journalists presumably also fall within the scope of the Directive, although in that case the relevant provision would be the rather general clause which provides for balancing the right to privacy and the freedom of expression.

 

CCTV cameras which fully face public streets and areas open to the public like shopping malls are obviously covered by the Directive, so processing must comply with the requirements of Article 6 of the Directive unless any other exceptions are applicable. CCTV used in workplaces would obviously not fall within the scope of the household exception, so the requirements of the DPD regarding processing would apply. Depending on the nature of the footage there would be further limits on sharing that footage (images of hospital patients, for instance, would reveal sensitive data about their health). Finally, there might be hybrid locations which are both public and private (for instance, a care home is both a residence and a workplace). Given that the Court has emphasised the household exception arises only when the processing can be tied ‘purely’ to private and family life hybrid locations are unlikely to be considered within the household exception.  In the example of the care home, this is especially likely to be true given that the data controller is likely to be the operator of the care home using CCTV for operational reasons, rather than private ones. Of course, it would still be possible to justify the use of CCTV in such cases in accordance with the Directive.

 

Barnard & Peers: chapter 9

 

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LGBTI asylum-seekers: the CJEU sends mixed messages

 

 

Steve Peers

 

Many countries worldwide still impose severe criminal sanctions and other forms of ill treatment on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, any non - EU citizen suffering persecution on grounds of sexual orientation can seek asylum in the EU, claiming that they are part of a 'particular social group' being persecuted, in accordance with the EU's qualification Directive.
 

The Court's prior case-law (the X, Y and Z judgment of 2013) further clarifies that they do not have to keep their sexuality hidden in their country of origin in order to claim refugee status. But the mere existence of criminal law prohibitions in the country of origin doesn't necessarily mean that LGBTI asylum-seekers are being persecuted: the crucial question is whether such laws are actually being enforced.
 

Before getting to the issue of persecution, though, how can the authorities check whether asylum-seekers are gay or lesbian in the first place? In today's judgment in A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities.
 

The judgment
 

Asked by a Dutch court to clarify what national authorities can do to establish the sexual orientation of asylum seekers, the CJEU begins by stating that a mere self declaration by the asylum seeker is not sufficient. This is only the starting point of the assessment.
 

Although EU legislation does not address the issue of the credibility of asylum seekers in much detail, the CJEU states that the process of determining credibility must be consistent with the EU Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they can be adapted to particular groups.
 

First of all, the CJEU states that questions 'based on stereotypical notions may be useful' to national authorities. But they cannot base their decisions purely on such notions, and the asylum seeker's inability to answer such questions cannot mean that he or she has no credibility.
 

Secondly, the CJEU rules against detailed questioning about asylum seekers' sex life, on the grounds that this would breach Article 7 of the Charter (the right to privacy). (On the questions which are asked in practice, see Colin Yeo's earlier post on the Free Movement blog).
 

Thirdly, the CJEU rules that LGBTI asylum-seekers should not perform sex acts, produce films of their sexual activities or undergo medical testing to prove their orientation. This would breach Article 1 of the Charter (the right to human dignity) as well as Article 7.
 

Finally, the CJEU rules that Member States cannot assume that LGBTI asylum-seekers lack credibility simply because they didn't raise the issue of their sexuality as soon as possible, in light of the sensitivity of the topic. However, the Court does not rule on some additional procedural issues considered in the Opinion of the Advocate-General.
 

Comments
 

The Court's judgment frees LGBTI asylum-seekers from many particularly obnoxious forms of testing and questioning. In particular, it frees them from phallometric testing. The Court didn't mention the details of this process, but suffice it to say that it involves examining men's physical reaction to viewing pornography. The judgment should have added that this process is also a breach of Article 4 of the Charter, as a form of degrading treatment.
 

As for producing films or engaging in sex acts, the Court was right to rule out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would be pressured to do the same thing.
 

The ruling also usefully clarified that LGBTI asylum-seekers do not need to declare their sexual orientation as soon as possible. This takes account of the social reality for people who have just fled countries where their personal identity is taboo.
 

On the other hand, today's judgment is unhelpful to the extent that it refers to the possibility of 'useful stereotypes' when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don't like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day - to - day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.
 

Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can't answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the 'wrong' answer to these questions; and those answers can form part of the assessment of credibility.

More broadly, the Court's approach fails to take sufficient account of the wide diversity of the expression of human sexual identity, especially in countries where homosexuality is taboo.
 

While some questions relating to LGBTI asylum-seekers' credibility must be acceptable, given that the Court ruled out self - declaration as an automatic route to establish such credibility, the Court could surely have found a better form of words than 'useful stereotypes'. It could, for instance, have endorsed the relevant UNHCR guidelines discussed in the Advocate-General’s opinion.

Although there are many positive aspects of today's judgment, the CJEU's unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.

Barnard and Peers: chapter 26

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Benefit Tourism by EU citizens: the CJEU just says No

 

 

Steve Peers

 

The CJEU has today delivered a pivotal judgment in the case of Dano, concerning access to social welfare benefits by EU citizens who move to another Member State. The Court's approach to the issues in this case (and other judgments on EU citizens with criminal convictions, decided earlier this year) is stricter than usual, so we can deduce from this that it is taking account of the broader political debate on the free movement of EU citizens. However, some aspects of the issues remain to be clarified in later case law.

 

The judgment

 

Mrs. Dano is a Romanian citizen who applied for job seekers benefits in Germany. She has not worked in Germany, and is not looking for work either.

 

The type of benefit she was applying for is a 'special non - contributory benefit' under the EU regulation on social security regulation. Also, the EU citizens' Directive provides that EU citizens are entitled to equal treatment regarding benefits on the territory of another Member State, except during their first three months of entry, if they are job-seekers or if they are seeking student grants before five years residence.

 

The CJEU said that these exceptions to the equal treatment rule did not apply to Mrs. Dano. However, the Court then ruled that she could nevertheless not invoke the equal treatment rule, since she did not qualify to be covered by the citizens Directive in the first place.

 

The directive applies to workers, self employed persons, students and others who have sufficient resources. While Article 8(4) of the Directive seems to provide for some flexibility as regards what might be considered as sufficient resources, the Court definitively rules that Mrs Dano doesn't have them. Indeed, the Court ruled firmly that the requirement in question 'seeks to prevent economically inactive Union citizens from using the host Member State's welfare system to fund their means of subsistence'.

 

While previous judgments had relied upon the equal treatment rules in the Treaties to suggest that impecunious EU citizens might still be entitled to benefits, today the Court ruled that unequal treatment was an 'inevitable consequence' of the EU rules.

 

Finally, the Court ruled that the EU's Charter of Fundamental Rights was not applicable, since the rules on access to special social security benefits fall outside the scope of the relevant regulation.

 

Comments

 

Earlier this year, the CJEU rule in the cases of G and Onuekwere that EU citizens who were sentenced to prison in a host Member State could not count the period of imprisonment either towards the five-year period needed to qualify for permanent residence in the host Member State or the ten year period needed to qualify for further enhanced protection against expulsion. The judgments were delivered shortly after the transition period on the free movement of Romanians and Bulgarians ended, at a time of great public debate about the free movement of EU citizens in the UK.

 

That debate has increased further since. The Court judgment in Dano provides a clear rejection, as compared to the prior case-law, of access to benefits by those who have never worked and who are not looking for work. In particular, in this judgment the Court now defers to the EU legislature and accepts the limits on access to benefits set out in the EU Directive, rather than insist (as it did before) that any legally resident EU citizen can in principle claim equal treatment as regards access to benefits based on the Treaties (On this point, see further the separate blog post on the historical context of the judgment).

Since the EU legislature is now in charge of access to benefits by EU citizens, it is more easy to amend the relevant rules to tighten them up, since amending the citizens' Directive would only need a Commission proposal and a qualified majority vote in the Council and agreement of the European Parliament. If access to benefits were still defined by the Treaties, then only a Treaty amendment could change the relevant rules, requiring agreement of all Member States and ratification by national parliaments. The judgment has therefore facilitated a possible renegotiation of the EU free movement rules on this issue, and more broadly a renegotiation of the UK's membership of the EU.

 

However, it leaves open the question of what restrictions might be placed on job-seekers or former workers' access to benefits or students' access to grants. Nor does it impact upon the strong obligation to give equal treatment to those who are working. As recently as June, the CJEU insisted in the Saint-Prix case (see discussion here) that it (and not the EU legislature) would still determine the meaning of 'worker', including former workers (as well as job-seekers, according to previous case law).

 

Furthermore, the judgment doesn't as such address the possible expulsion of persons in Mrs Dano's situation, still less the prospect of denying her re-entry. As I have pointed out before, the citizens Directive places considerable constraints on the former, and does not permit the latter. (See now also my separate blog post on the question of whether this judgment affects expulsion of unemployed EU citizens).

 

So it doesn't address some of the key issues in the debate. Nor could it address the question of whether a Member State could introduce quotas for workers coming from other Member States. That is clearly illegal under EU law as it now stands.

 

Having said that, the Court judgment sends a clear message that Member States can act against at least the most blatant types of benefit tourism. The tone of the judgment suggests that the CJEU's judges, as Americans say, read the morning papers.

 

 

Barnard and Peers: chapter 13, chapter 16

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Civil liability for Internet publishing: the CJEU clarifies the law

Professor Lorna Woods, co-author of Steiner & Woods, EU Law

Introduction

Yesterday’s CJEU judgment in Papasavvas is the most recent in a line of cases seeking to trace the edges of the concept of ‘intermediary’ for the purposes of EU information technology law, a question that has become rather more problematic than when the eCommerce Directive was first drafted in 2000. Then, the role of intermediaries was much more technical and related to transmission and technical access. Since then the market has moved on with the development of many services that are now viewed as important for the access and use of content on the Internet. Many of these services blur the boundaries between transmission services and content services. To what extent are those services neutral intermediaries? While in many respects this case could be seen as quite straightforward, it hints at still yet unresolved questions and highlights difficulties about reliance on EU law in national courts.

Facts

Mr Papasavvas (‘P’) brought an action for defamation in respect of articles published in the daily national newspaper O Fileleftheros, on 7 November 2010, which were published online on two websites. He sought damages and an injunction. The national court referred the following questions:

(1)      Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31 …?

(2)      If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31 …, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?

(3)      Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31 … relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?

(4)      Do the definitions of “information society service” and “service provider” in Article 2 of Directive 2000/31 … and Article 1(2) of Directive 98/34 … cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?

(5)      Bearing in mind the definition of “information service provider”, laid down in Article 2 of Directive 2000/31/EC and Article 1(2) of Directive 98/34 … could the following, or any of them, be regarded as a “mere conduit” or “caching” or “hosting” for the purposes of Articles 12, 13 and 14 of Directive 2000/31:

(a)      a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;

(b)      an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper’s staff and/or freelance journalists;

(c)      a website which provides (a) or (b) above for a subscription?’

Judgment

The Court dealt first with queries raised regarding admissibility.  P raised questions about timing: the proceedings at national level are at an early stage, to the point that the defendants in the national action have not yet filed a defence.  On this basis, P argued that the questions referred must be hypothetical as the nature of the dispute had not yet been defined. The Court did not address this argument directly but instead stated that ‘the description of the legal and factual framework of the proceedings in the order for reference seems to suffice so as to permit the Court to make a ruling’. 

P had also argued that the defendants did not fall within the scope of the e-Commerce directive and therefore questions relating to its interpretation were unnecessary. This is of course a little circular and the Court rejected the argument, pointing out that the scope of the Directive and the applicability to the defendants was one of the main issues that needed to be resolved. Having determined that, the Court re-ordered the questions referred and started with question 4 on the application of the Directive.

The Court reformulated the question, asking whether ‘information society services’ (ISS) as defined in the directive ‘covers the provision of online information services for which the service provider is remunerated not by the recipient, but by income generated by advertisements posted on a website (para 26).’ The Court re-iterated that the definition of ISS has four elements:

·         ‘normally provided for remuneration’;

·         at a distance;

·         by electronic means; and

·         at the individual request of a recipient of services.

The final three seemed non-contentious, but what concerned the national court was the issue of remuneration, as the user did not pay to access the website.  The Court then referred to recital 18 of the Directive, which expressly excludes the possibility that a service will fall outside the directive merely because payment is indirect.  In this there is a similarity to the CJEU’s reasoning in Bond van Adverteerders and Others (paragraph 16).

Having determined that the directive could apply to information services such as those in issue here, the Court then considered question 1 in which the referring court is effectively asking whether the directive precludes the application of rules of civil liability for defamation to ISS providers.  The directive applies the principle of home country rule to service providers, with the corollary that Member States should not impose additional rules on services coming from other Member States.  Given that the defendants in the domestic proceedings were based in the same Member State as P, the issue of whether the civil defamation rules constituted a restriction did not apply, though the Court noted that such rules fall within the scope of the directive (at Article 2(h)).

The Court then went on to consider whether the defendants could benefit from the intermediary immunity provisions in Articles 12-14 of the Directive. The Court considered the role of these provisions, and relying on its reasoning in Google France and Google  (paragraph 113) and L’Oréal and Others (paragraph 113) stated that they applied to intermediaries and activities which are of ‘a merely technical, automatic and passive nature’, that the ISS provider has neither knowledge of nor control over the information which is transmitted or stored and takes a neutral approach to content. The Court highlighted factors such as assisting clients in drafting commercial messages, or in optimising presentation of content.  It concluded:

Consequently, since a newspaper publishing company which posts an online version of a newspaper on its website has, in principle, knowledge about the information which it posts and exercises control over that information, it cannot be considered to be an ‘intermediary service provider’ within the meaning of Articles 12 to 14 of Directive 2000/31, whether or not access to that website is free of charge. [45]

So, in such a circumstance, a newspaper cannot claim exemption from civil liability.  Given this answer, it was not apparent that the Court needed to address question (2). Nonetheless, it confirmed that it made no difference whether the case involved business to consumer or consumer to consumer cases. [50]

The final issues dealt with were those raised by question (3), though again the Court noted that answers to this question might not be necessary given that Articles 12-14 did not apply.  The Court summarised this question as asking whether Articles 12-14 preclude the adoption of interim measures (such as the injunction prohibiting publication) or whether those articles create individual rights which the ISS provider may plead as defences in law in the context of legal proceedings such as those in the main proceedings. As regards the first element, the Court noted that – subject to the principles of equivalence and effectiveness, matters as to conditions under which remedies might be available were matters for national law. [53]

The second element effectively concerns the direct effect of the immunity provisions: can they be relied on in the context of a dispute between private parties. The Court returned to the general case law on horizontal direct effect of directives, arguing that ‘with regard to proceedings between individuals, such as those at issue in the main proceedings, the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual’ [54] but that indirect effect/doctrine of consistent interpretation from Von Colson would apply. [56]

Comment

While this case at the headline level came to the right answer - people who write or (first) publish content on the Internet are not intermediaries - the case raises a couple of issues worth pondering further.

First off, there was no Advocate-General’s opinion.  Querying this might seem churlish, given that I’ve just said the Court got to the right answer, and on the facts the judgment is a straightforward application of the Court’s existing law on Articles 12-14 in Google and L’Oreal.  It is, however, a sensitive area: currently a case, Delphi, concerning a news site and the self-same provisions is awaiting a judgment from the Grand Chamber of the European Court of Human Rights on whether there was a breach of freedom of expression in finding the journalists liable for defamation (see the Chamber judgment here).  While there is a crucial factual difference between the two cases (Delphiconcerns liability for user generated content, not journalism), it is noteworthy that although Recital 9 recognises the significance of ISS for freedom of expression, Papsavvas did not even consider whether there was a freedom of expression argument in issue.

To some extent most of the questions referred by the national court seem to reflect a lack of familiarity with the internal market system generally. So, the application of the rules in this case might seem straightforward, but they might not always be so.  While it should come as no surprise that national rules imposing civil liability on a service ‘import’ could be a restriction, nor that ‘home’ regulation should not be circumvented by reliance on provisions aimed at cross-border services, the determination of the place of establishment may in itself be problematic, as cases on cross-border television services have shown.  The eCommerce Directive seems to refer to the Court’s general case law on this point (Article 2(c), Recital 19): the Court accept the establishment point as proven here in Papasavvas. 

There is a risk of forum shopping and, by contrast to the Audiovisual Media Services Directive (which deals with television), the eCommerce Directive has no ‘anti-abuse’ clause, although Member States may derogate on limited grounds (article 3(4), Recital 24). In this case, the Court did not address the question of whether rules relating to defamation could be seen as being justified under the protection of human dignity in Article 3(4)(a)(i).  Of course, a system which allows or even encourages delocalisation to another Member State has the consequence of adversely affecting would be plaintiffs under the national rules, especially private persons and small businesses. Even in rules of conflicts allow action in the injured party’s home state, there may be questions as to applicable law in the light of the home country regulatory principle (see eDate and Martinez). So, while the eCommerce Directive claimed not to affect rules on conflicts of law (Article 1(4)), there is an interrelationship there and one which may affect the effectiveness of remedies for users. 

Similarly, and as the Court itself noted, remuneration has typically been widely interpreted.  The Court referred to Bond van Adverteerders, a case concerning free-to-air commercial television – a set-up which has clear parallels with free to user internet services.  In its case law on Article 56 TFEU (freedom to provide services), the Court has gone further, even suggesting (in Deliege) that an amateur judoka was remunerated because she took part in competitions which carried advertising and which were televised.  Essentially the Court seemed to be saying, ‘there’s money there somewhere….’. Of course, there will be hard questions in some cases- ‘amateur’ content available freely: is that an ISS, and does the answer to the question change if the platform carries advertising entirely separately? In Delphi, it was the user generated content that was problematic. This question did not arise, however, as it was the underlying website that was sued, and it clearly was a commercial entity for the same reason that the newspaper in Papasavvas was.

Perhaps the interesting questions are those which deal with the interface between the immunity provisions and national law.  The purpose of these provisions is to encourage the development of the digital environment, particularly cross border services (recital 40). It should therefore make no difference if the service the intermediary carries is between businesses, or business to consumer, as indeed the Court ruled. The national court also questioned whether injunctions were permissible. The Court handed this one off to national procedural autonomy, but it is arguable that the terms of the directive suggest that injunctions are in principle permissible: each of the intermediary exceptions state that the exemption from liability does not affect the possibility of the Member State’s legal system requiring the intermediary to terminate the offending activity.

Finally, we come to the question of whether intermediaries can rely on the exemption directly before national courts: in effect, do these provisions have horizontal direct effect? The Court dealt with this by returning to basic principles precluding such an effect, but in doing so it argued that Union law precludes the imposition of an obligation on an individual. Of course, in this case the directive is not imposing an obligation on an individual but rather removing it. In this sense, although for different reasons, the position is closer to that in cases such as CIA Security Internationalor even Wells, where a national obligation is disapplied. This area of law is problematic generally. Suffice it to note here that this approach knocks a potentially large hole in the protection of intermediaries if the Member State has not implemented, or not implemented correctly, indirect effect notwithstanding.

Barnard & Peers: chapter 6, chapter 14

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