Denmark and EU Justice and Home Affairs Law: Details of the planned referendum

 

 

Steve Peers

Danish participation in cross-border criminal law measures is symbolised by 'The Bridge', the 'Nordic Noir' series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot– participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law.

In practice, while Danish governments have promised for a while to hold a referendum on the JHA opt-out, the concrete plans to hold one in the near future were triggered in light of the planned EU legislation to replace the current rules establishing Europol, the EU police agency, with new legislation (on that proposal, see here).  This led to an agreement between the government parties and several opposition parties (excluding the far-right Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol’ (for the text, see here). This agreement states that the referendum will take place after the next general election (which must be held by September 2015), and no later than 31 March 2016. The ‘main reason’ for the referendum is to allow Denmark to opt in to the new Europol rules, but the parties also agreed to study whether Denmark should opt in to other EU civil, criminal and policing laws which currently don’t apply. However, the parties agreed that Denmark should not opt in to any EU immigration or asylum law (besides Schengen, which already applies).

This analysis has now been completed (see the text in Danish here), and the parties have agreed that Denmark would apply to opt in to 22 EU laws if the referendum is successful. Conversely, they have agreed not to opt in to 10 other EU laws.

As regards civil cooperation, the parties have agreed to opt in to large majority of EU measures, as regards: insolvency; payment orders; small claims; the European enforcement order; mediation; the Rome Regulation (on conflicts of law concerning contract); the Rome II Regulation (on conflicts of law concerning non-contractual liability); external relations; protection orders; inheritance; maintenance proceedings; parental responsibility; and account preservation orders. It should be noted that changes to the insolvency proceedings regulation are about to be formally adopted, and changes to the small claims rules will likely be agreed later this year; presumably the agreement also entails opt-ins to the existing legislation as amended.

In contrast, the parties agreed not to opt in to legislation on legal aid in cross-border proceedings, or to the Rome III Regulation on conflicts of law in divorce cases. Nor have they agreed yet on whether to opt in to the pending proposals relating to jurisdiction and choice of law over marital property, and the property of civil partnerships, in the event of relationship breakdown. In general, the recent agreement states that decisions to opt in to measures which have not yet been adopted depend on a future consensus of the relevant parties, or endorsement in a general election.

As for policing and criminal law, the parties agree to opt in to all measures concerning substantive criminal law and most measures concerning EU agencies and mutual recognition. In particular, they agree to opt into seven Directives, regarding: the European Investigation Order; protection orders; trafficking in persons; sexual abuse of children; cyber-crime; market abuse; and counterfeiting the euro. Conversely, they rule out opting in to the legislation on crime victims’ rights, the three Directives on suspects’ rights (concerning interpretation and translation, access to a lawyer and the right to information) and the rules on confiscation of criminal assets. They also rule out opting in to the legislation on EU funding in JHA matters.

They have partly agreed on future measures in this field, agreeing to opt in to the Regulations now under discussion on Europol and Eurojust (the EU prosecutors’ agency) and the Directive on passenger name records, but to opt out of the legislation establishing the European Public Prosecutor. The Commission has also proposed legislation on the European Police College, fraud against EU funds and drug trafficking, along with three more suspects’ rights measures (concerning childrens’ rights, the presumption of innocence and legal aid). Decisions on those measures will again depend upon on a future consensus of the relevant parties, or endorsement in a general election.

The parties’ clarification of their intentions provides useful certainty for the Danish public when it has the opportunity to vote on these issues. In general, in criminal matters Denmark would be participating in the EU measures assisting the prosecution, without any counterbalance by means of recent legislation regarding the rights of victims or suspects. Similarly it would still be participating in the Schengen rules on external border controls and the abolition of internal border checks, without any of the accompanying harmonisation of immigration and asylum law that applies to other Schengen States which are EU members. On the whole, Denmark would also be participating in more JHA legislation than the UK and Ireland – not just as regards full participation in Schengen (as is already the case), but also as regards the EU legislation on inheritance, account preservation, investigation orders, market abuse, currency counterfeiting and Eurojust, all of which one or both of the UK and Ireland have opted out of. On the other hand, the UK and Ireland have opted in to the EU legislation on crime victims’ rights, some of the legislation on suspects’ rights and the first phase of EU asylum law. Given that Ireland participates in the single currency, a Danish 'yes' to selective participation in JHA law would cement the UK's position as the chief non-participant in EU laws which bind most other Member States.

 

Barnard & Peers: chapter 26

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Denmark and EU Justice and Home Affairs Law: Really Opting Back In?

Steve Peers

Yesterday, the Danish Prime Minister made an announcement that Denmark would hold another referendum on EU matters in 2015. This was widely reported as a vote on whether Denmark would opt back in to EU Justice and Home Affairs (JHA) law. In fact, the government’s intention is to hold a vote on whether to replace a complete opt out with a selective opt-out. This blog post explains the detail of the issue, including a complete list of the measures which Denmark might opt back into if the Danish public approves the referendum proposal.

The Danish opt-out effectively dates back to the Danish referendum on the Maastricht Treaty in 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Denmark fully participates in EU JHA law. This was accompanied by a declaration stating that any transfer of powers to the European Community (as it then was) would be subject to a referendum in Denmark. This is generally regarded as the basis for Denmark’s opt-out on JHA matters.

This Decision is also often described as an opt-out on EU citizenship, although it is no such thing: it simply clarifies the relationship between Danish and EU citizenship. In fact, despite a widespread belief to the contrary, Denmark has no opt-out on EU citizenship at all.

The JHA opt-out was formalised as a Protocol to the Treaties at the time of the Treaty of Amsterdam (in force 1999), and was then revised at the time of the Treaty of Lisbon (in force 2009). It currently appears as Protocol 22 to the Treaties.

In a nutshell, the legal position is as follows.

First of all, Denmark is bound by the ‘Schengen’ rules abolishing border controls between most Member States, and measures building upon them, such as the Schengen Borders Code, the EU’s visa code, the Schengen Information System and the EU’s border control agency, Frontex. However, it is bound by these measures only as a matter of international law, not EU law. It could choose to opt out of new measures in this area, but there would be some unspecified retaliation if it did. It hasn’t done so in practice.

Secondly, Denmark is not bound by any other EU measures on immigration and asylum law, or civil cooperation, except for the measures on a standardised list of countries whose nationals do and don’t need visas to enter the EU. However,  for a few of these measures,  Denmark is bound instead by means of a treaty with the EU: the Dublin rules on asylum applications; the Brussels Regulation on civil and commercial jurisdiction; and the Regulation on service of documents. It’s also bound by the initial Rome Convention on conflicts of law in contract, but not by the Regulation replacing it.

Thirdly, Denmark is bound by EU measures on policing and criminal law adopted before the entry into force of the Treaty of Lisbon. This includes (as matters stand) the EU measures establishing Europol (the EU police agency), Eurojust (the EU prosecutors’ agency) and the European Arrest Warrant.

Fourthly, Denmark is conversely not bound by EU measures on policing and criminal law adopted after the entry into force of the Treaty of Lisbon. This includes particularly EU legislation on suspects’ rights, victims’ rights, and the European Investigation Order. In the near future, it will also not be bound by legislation re-establishing Europol, which will soon be the subject of final negotiations between the European Parliament and the Council (on the details of that negotiation, see the previous blog post). According to the Prime Minister, this is a particular reason for considering whether to exercise the opt-out.

The assumption behind her argument is that the pre-Lisbon measure establishing Europol will not be applicable to Denmark any longer once a new measure is adopted. In fact, Article 2 of Protocol 22 says as follows:

…acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon which are amended shall continue to be binding upon and applicable to Denmark unchanged.

However, in the specific case of EU agencies, it is hard to see in practice how Denmark could continue to be part of Europol as it was set up subject to a pre-Lisbon measure, while all of the other Member States (presuming that the UK and Ireland opt-in) are part of Europol as it was set up afresh by a post-Lisbon Regulation.

In fact, the same issue is likely to arise as regards Eurojust (the EU prosecutors’ agency) in the next year or so, since there is also a proposal to replace the pre-Lisbon Decision setting up that body with a post-Lisbon Regulation.

What are the consequences of the opt-in? Denmark has the power to denounce ‘all or part’ of the Protocol, which also includes an opt-out relating to EU defence policy, without a need for a Treaty amendment. (Note that Denmark’s opt-out from the obligation to adopt the EU’s single currency is set out in a separate Protocol).

However, Denmark also has another option available to it: to replace the current complete opt-out for post-Lisbon JHA measures not linked to the Schengen acquis with a selective opt-out, ie the power to opt in to JHA measures on a case-by-case basis. According to press reports, this is what the Prime Minister proposes. In light of this, it simply isn’t accurate to say that Denmark would be voting to ‘give up its JHA opt-out’.

If the public vote in favour, Denmark would have the same power that the UK and Ireland have to opt in to JHA measures on a case-by-case basis, either within three months after those measures are proposed or at any time after they are finally adopted. However, unlike the UK and Ireland, Denmark will continue to be fully bound by EU measures on visa lists (ie with no-opt-out possibility), and will also continue to participate in the Schengen rules (although those rules would then have the force of EU law, not international law, in Denmark).

It would be up to the Danish government and parliament to determine what arrangements apply to opting in, as a matter of national law. If national law permits, it is open to Denmark to provide, if it wishes, that its national parliament must approve every opt-in decision, possibly by a higher majority in some or all cases. The Danish government could also announce in advance which measures it would (and would not) seek to opt in to.

To clarify the potential impact of the decision, the Annex to this post contains a complete list of all current measures or proposals which Denmark could opt to participate in if the public chose to vote for a selective JHA opt-out in place of the current complete opt-out. Again, though, Denmark could choose to participate in only a small number of these measures if it wished.

While it is sometimes claimed that EU opt-outs are not really genuine, because Member States will face undue pressure to opt-in to EU measures regardless, the evidence of the last 15 years clearly refutes this assertion. In practice, Denmark and the UK have not been forced to adopt the single currency, and the UK and Ireland have opted out of a growing number of JHA measures.

Barnard & Peers: chapter 2, chapter 25, chapter 26

Annex

JHA measures which Denmark couldopt in to after adopting a selective opt-out

1) Adopted measures

Asylum

1. Directive 2001/55 on temporary protection (OJ 2001 L 212/12)

2. Regulation 439/2010 establishing a European Asylum Support Office (OJ 2010 L 132/11)

3. Recast Directive 2011/95 on qualification and content of international protection (OJ 2011 L 337/9)

4. Directive 2013/33 on reception conditions for asylum-seekers (OJ 2013 L 180/96)

5. Regulation 604/2013 on responsibility for asylum applications (OJ 2013 L 180/31) – nb applies to Denmark by means of treaty already

6. Directive 2013/32 on international protection procedures (OJ 2013 L 180/60)

7. Regulation 603/2013 on Eurodac (OJ 2013 L 180/1) – nb applies to Denmark by means of treaty already

8. Regulation establishing the asylum and migration Fund (OJ 2014 L 150/168)

9. Regulation laying down general provisions on the Asylum and Migration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management ((OJ 2014 L 150/112)

Irregular migration

1.Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24)

2.Decision on joint expulsion flights (OJ 2004 L 261/28)

3. Directive 2004/81 on residence permits for victims of trafficking or facilitation of irregular migration (OJ 2004 L 261/19)

4.Decision on an information and coordination network for Member States’ migration management services (OJ 2005 L 83/48)

5. Directive 2008/115 on common rules for expulsion – Returns Directive (OJ 2008 L 348/98) – nb applies to Denmark in part already

6. Directive 2009/52 on sanctions for employers of irregular migrants (OJ 2009 L 168/24)

Legal Migration

1. Directive 2003/86 on family reunion (OJ 2003 L 251/12)

2. Directive 2003/109 on the status of long-term resident third-country nationals (OJ 2004 L 16/44)

3. Directive 2004/114 on entry and residence of students, volunteers and others (OJ 2004 L 375/12)

4. Directive 2005/71 on admission of researchers (OJ 2005 L 289/15)

5. Decision on exchange of asylum and immigration information (OJ 2006 L 283/40)

6. Decision establishing Migration Network (OJ 2008 L 131/7)

7. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (‘Blue Card Directive’) (OJ 2009 L 155/17)

8. Regulation 1231/2010 extending Regulation 883/2004 on social security for EU citizens to third-country nationals who move within the EU (OJ 2010 L 344/1)

9. Directive 2011/51 applying long-term residents’ Directive to refugees and beneficiaries of subsidiary protection (OJ 2011 L 132/1)

10. Directive 2011/98 (single permit Directive) (OJ 2011 L 343/1)

11. Directive 2014/36 on admission of seasonal workers (OJ 2014 L 94/375)

12. Directive 2014/66 on admission of intra-corporate transferees (OJ 2014 L 157/1)

Civil Cooperation

1. Regulation 1346/2000 on jurisdiction over and enforcement of insolvency proceedings (OJ 2000 L 160/1)

2. Regulation 1347/2000 on jurisdiction over and enforcement of matrimonial and custody judgments (OJ 2000 L 160/19)

3. Regulation 1206/2001 on cross-border taking of evidence in civil and commercial matters (OJ 2001 L 174/1)

4. Decision 2001/470 on European Judicial Network on civil and commercial matters (OJ 2001 L 174/25)

5.  Directive 2003/8 on legal aid (OJ 2003 L 26/41)

6. Regulation 2201/2003 on parental responsibility (OJ 2003 L 338/1)

7. Regulation 805/2004 on European enforcement order (OJ 2004 L 143/15)

8. Regulation 1896/2006 creating a European order for payment procedure (OJ 2006 L 399/1)

9. Regulation 861/2007 establishing a European small claims procedure (OJ 2007 L 199/1)

10. Regulation 864/2007 on the law applicable to non-contractual obligations ('Rome II') (OJ 2007 L 199/40)

11. Directive 2008/52 on mediation (OJ 2008 L 136/3)

12. Regulation 593/2008 on 'Rome I' (choice of law for contractual obligations) (OJ 2008 L 177/6)

13. Decision amending Decision on judicial network (OJ 2009 L 168/35)

14. Regulation 662/2009 on Member States’ negotiation and conclusion of external treaties relating to maintenance, divorce and parental responsibility (OJ 2009 L 200/25)

15. Regulation 664/2009 on Member States’ negotiation and conclusion of external treaties relating to conflict of laws as regards contractual and non-contractual obligations (OJ 2009 L 200/46)

16. ‘Rome III’ Regulation 1259/2010 on choice of law in divorce proceedings (OJ 2010 L 343/10)

17. Regulation 650/2012 on choice of law and jurisdiction in succession proceedings (OJ 2012 L 201/107)

18. Regulation 1215/2012 on civil and commercial jurisdiction (OJ 2012 L 351/1) - – nb applies to Denmark by means of treaty already

19. Regulation 606/2013 on civil law enforcement of protection orders (OJ 2013 L 181/4)

20. Regulation 542/1014 amending civil jurisdiction Regulation (OJ 2014 L 163/1) – nb applies to Denmark by means of treaty already

21. Regulation on European account preservation orders

Criminal law and policing

Directives

1. Directive 2010/64 on the right to interpretation and translation in the framework of criminal proceedings (OJ 2010 L 280/1)

2. Directive 2011/36 on trafficking in persons (OJ 2011 L 101/1)

3. Directive 2011/82 on exchange of information on traffic offences (OJ 2011 L 288/1)

4. Directive 2011/92 on sexual exploitation of children (OJ 2011 L 335/1)

5. Directive 2011/99 on European protection order (OJ 2011 L 338/2)

6. Directive 2012/13 on the right to information on criminal proceedings (OJ 2012 L 142/1)

7. Directive 2012/29 on crime victims’ rights (OJ 2012 L 315/57)

8. Directive 2013/40 on attacks on information systems (OJ 2013 L 218/8)

9. Directive 2013/48 on access to lawyer and communication rights (OJ 2013 L 294/1)

10. Directive 2014/41 on European investigation order (OJ 2014 L 130/1)

11. Directive 2014/42 on freezing and confiscation of criminal proceeds (OJ 2014 L 127/39)

12. Directive 2014/57 on criminal sanctions against market abuse

13. Directive 2014/62 on counterfeiting currency (OJ 2014 L 151/1)

Regulations

1. Regulation establishing a Justice Programme (OJ 2013 L 354/73)

2. Regulation on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ 2014 L 150/93)

3. Regulation 543/2014 amending Decision on European Police College (OJ 2014 L 163/5)

2) Proposals

Immigration and asylum

1. Directive on admission of students, researchers and others (COM (2013) 151, 25 March 2013)

2. Regulation amending the Dublin III Regulation regarding unaccompanied minors (COM (2014) 382, 26 June 2014)

Civil cooperation

1. Commission invitation to Council to apply ‘co-decision’ procedure to the issue of maintenance obligations (COM (2005) 648, 15 Dec. 2005)

2. Commission proposal for Regulation on choice of law and jurisdiction on matrimonial property (COM (2011) 126, 16 Mar. 2011)

3. Commission proposal for Regulation on choice of law and jurisdiction on registered partnerships (COM (2011) 127, 16 Mar. 2011)

4. Commission proposal for Regulation amending insolvency Regulation (COM (2012) 744, 12 Dec. 2012)

5. Proposal for Regulation amending prior legislation regarding implementing measures (COM (2013) 452, 27 June 2013)

6. Proposal for Regulation amending small claims and order for payment Regulations (COM (2013) 794, 19 Nov. 2013)

Criminal law

1. Proposal for Directive on the right to interpretation and translation in the framework of criminal proceedings (COM (2010) 82, 9 March 2010)

2. Proposal for Directive on passenger name records (COM (2011) 32, 2 Feb. 2011)

3. Proposal for Directive on protection of EU financial interests (COM (2012) 363, 11 July 2012)

4. Proposal to amend Framework Decision on drug trafficking (COM (2013) 618, 17 Sep. 2013)

5. Proposal on presumption of innocence (COM (2013) 821, 27 Nov. 2013)

6. Proposal on childrens’ rights as suspects (COM (2013) 822, 27 Nov. 2013)

7. Proposal on provisional legal aid (COM (2013) 824, 27 Nov. 2013)

8. Regulation on Europol (COM (2013) 173, 27 March 2013)

9. Regulation on European Public Prosecutor’s Office (COM (2013) 534, 17 July 2013)

10. Regulation on Eurojust (COM (2013) 535, 17 July 2013)

Note: this list does not include measures which have expired or been replaced (or which will be replaced as of July 2015). It also does not include international treaties with third States, since at least in some cases, Denmark has parallel arrangements in place with the countries concerned. The most important treaties in question concern readmission, visa facilitation, the Hague Convention on maintenance and treaties on mutual assistance, extradition and exchange of police information.

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Is obesity a disability?

Katharina Ó Cathaoir, PhD Fellow, University of Copenhagen

Is obesity a disability? Advocate General Jääskinen addressed this loaded question yesterday 17 July 2014, in his anticipated opinion in Kaltoft v. Municipality of Billund. The case has garnered media attention with practitioners and journalists concerned by the implications for employers and health. The AG’s opinion is non-binding. The Court will issue its own judgment in the next few months, which will be binding on EU member states. However, in general, the Court tends to follow the AG’s opinion, although it is free to depart therefrom.

What is obesity?

An adult is classified as having obesity if he or she has a body-mass index (BMI) of over 30 (mass kg/ height m2). In most European states, the rate of obesity has doubled in the last twenty years. On average at least 17% of the adult European population is obese. As a result, the public, and state and interstate bodies increasingly look for solutions to the obesity “epidemic”.  Generally, obesity is linked to lack of physical activity and the consumption of too many calories. However, environmental factors, such as walkability, ability to afford and access healthful food, and opportunities to exercise may contribute. There is evidence of a link between low socio-economic status and obesity. Long term weight loss, although possible, is not maintained by everyone.

Facts of the case

Kaltoft worked as a child minder for 15 years with the Municipality of Billund. For the entirety of this time Kaltoft was obese, weighing no less than 160kg. During a period of one year he was provided with financial assistance by the Municipality to attend fitness and physical training sessions. He also unsuccessfully pursued bariatric surgery. Contrary to what has been reported, it has not been established that Kaltoft was dismissed due to his obesity. This will be a matter for the Danish court to decide following the preliminary ruling of the CJEU. Furthermore, Kaltoft, in a BBC interview, denied that he was unable to tie the children’s shoelaces as had been reported. Instead, both parties appear to maintain that Kaltoft was fully capable of fulfilling his position.

Mr Kaltoft was not formally given reasons for his dismissal although the Municipality contends it was due to a decline in the number of children making use of the service. Mr Kaltoft, however, alleges that his obesity was broached at his dismissal hearing and declared a reason for the decision. As a result, Mr Kaltoft argued that he had been unlawfully discriminated against due to his obesity and sought damages. The Danish court referred four questions to the CJEU for preliminary ruling.

Question 1: Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?

The AG succinctly opined that obesity does not fall under any general prohibition of discrimination under EU labour discrimination law. Jääskinen considered that the Charter of the Fundamental Rights of the EU did not apply as Denmark was not implementing EU law as such. The sufficient degree of connection with EU law above and beyond the fact that “matters covered are closely related, or one of those matters has an indirect impact on the other” was not met. Furthermore, as Articles 10 and 19 TFEU, as well as Directive 2000/78 (the employment equality Directive, which bans discrimination in employment on grounds of disability, age, religion or sexual orientation), Council Directive 2000/43/EC of 29 June 2000 (the race equality Directive) etc., address specific, exhaustive grounds of non-discrimination. These could not be seen as establishing a general prohibition against discrimination. Thus, the AG rejected a more expansive interpretation of discrimination in EU law as argued by Kaltoft.

Having swiftly disposed of the first three questions (the second two were nullified by the first answer in the negative), the AG engaged in a detailed analysis of the concepts of disability and obesity.

Question 4: Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 2000/78EC… and if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the probation of discrimination [on] grounds of disability as laid down in that directive?

The AG excluded the possibility that obesity per se would amount to a disability under Directive 2000/78. However, obesity of a certain severity may amount to a disability, provided it fulfils the criteria laid out in case law.

It should be emphasized that there is limited support for obesity per se as a disability. In the United States, in many states, obesity must be accompanied with a physiological condition to qualify as a disability. However, the Equal Employment Opportunity Commission (EEOC) has stated that “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment” and has succeeded on this basis in a number of federal cases. Thus, obesity must reach a higher, more extreme threshold to be a disability per se.

Classifying obesity as a disability

Disability is not defined by the Employment Equality Directive. However, the Directive must, as far as possible, be interpreted consistently with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The AG followed the definition of disability offered in previous case law:  

“A limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”

This limitation must be long term. The AG, as in the aforementioned case, relied heavily on the UNCRDP and acknowledged disability as an evolving concept.

Thus, the AG concluded that “mere” obesity is insufficient to amount to a disability, instead “most probably only WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood”.

The AG also stated that it would be absurd if the individual’s ability to carry out his work excluded him from the Directive. Thus, the long term condition must cause limitations “in full and effective participation in professional life in general on equal terms with persons not having the condition”. This may be due to “physical and or psychological limitations”.

Interestingly, the AG also addressed the issue of the origin of the disability. Whether the person’s obesity can be traced to his own behaviour or an external factor was deemed irrelevant. The AG pointed out that many other disabilities may occur due to negligence or risk taking and avoid the moral spotlight.

The implications of disability

Under the EU Employment Equality Directive, an employer has a duty to reasonably accommodate an employee with a disability. Article 5:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied by existing measures as an element of disability policy in the Member State, it should not be considered disproportionate.”

Thus, the duty is not absolute and the employer may show as a defence that accommodation would impose a “disproportionate burden”. Furthermore, as the AG highlighted, the employer is not required to maintain an individual who cannot “perform the essential functions of the post”. Thus, some of the panic regarding the wide reaching ramifications of the decision appears exaggerated.

Recital 20 of the Preamble suggests such accommodation could include “premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”. However, the assessment will depend on the particular individual.

The Preamble also gives some guidance with regard to assessing whether any particular accommodation amounts to a disproportionate burden in Recital 21:

"To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance."

Comment

In Against Health; How Health became the new Morality, Kirkland and others condemn the use of “health” to make value judgments and moral assumptions on an individual. The approach of the AG, in concentrating on the functionality of the individual, instead of causality and responsibility, avoids this. However, some commentators fear that tackling obesity discrimination may serve to support or normalise obesity. Will large numbers of employers now be subject to costly implications? Is it insulting to deem a potentially “curable” condition a disability? With the “fight” against obesity staunchly declared, is it contrary to public health to describe obesity as a disability requiring protection from discrimination? Will this opinion medicalise obese individuals and further remove their sense of personal responsibility?

The experiences of obese persons should not be ignored. Discrimination in employment and healthcare is well documented and appears to be increasing. The AG has adopted a balanced position whereby only severe obesity could be a disability on its own. In reality, this covers only a small percentage of obese persons, especially considering the long term requirement. The majority of obese persons seek to lose weight but some, like Kaltoft, despite efforts, fail to do so. Factors such as diet and preventability play into other recognised disabilities, such as diabetes.

It is contended that stigma and discrimination should never be in the arsenal of a state’s public health policy. Indeed, it appears that shame is a major factor that inhibits persons with obesity from engaging with health care professionals and exercise. Thus, stigma is unlikely to decrease the number of obese persons. Furthermore, having a disability should not be seen as infantilising but instead encouraging full equal participation.

Conclusion

The opinion will prove too moderate for some and extreme for others. While the AG did not go so far as to declare obesity per se a disability, he did suggest extreme obesity could be a disability. Despite showing an understanding influenced by a rights based approach, labelling people with obesity of a certain severity needs further exploration. It does not seem fully clear as to why the AG in particular identified Class III obesity as the only category per se justifying recognition as a disability. Further explanation as to what limitations separate an individual with a BMI of 39 from a BMI of 40 is needed. Furthermore, employers must avoid stigmatising or insensitive identification of employees on the basis of physical characteristics, no matter how well intentioned. 

Barnard & Peers: chapter 20 

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The European Investigation Order: A new approach to mutual recognition in criminal matters

Emilio De Capitani and Steve Peers

  

The adoption of Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal matters in the European Union notably after the entry into force of the Lisbon Treaty and of the EU Charter of Fundamental Rights. This post focusses in turn on the broader legal context of the new Directive, its territorial scope in light of various opt-outs, and its important provisions on the relationship between human rights and mutual recognition.

A comprehensive single instrument

As from 22 May 2017, this Directive replaces most of the existing laws in a key area of judicial cooperation – the transfer of evidence between Member States in criminal cases – by a single new instrument which will make cross-border investigations faster and more efficient.

That current patchwork of rules comprises:

-          the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols);

-          parts of the Schengen Convention;

-          the 2000 EU Convention on Mutual assistance in criminal matters (and its Protocol);

-          the 2008 Framework Decision on the European evidence warrant; and

-          the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (as regards freezing of evidence).

Unlike the European Evidence Warrant, which most Member States thought was useless and have not bothered to implement, the new Directive will cover almost all investigative measures  such as interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts. The Directive will not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of a joint investigation team and the gathering of evidence within such a team which. According to the legislator, these issues “require specific rules which are better dealt with separately”.

A small part of the previous Conventions will remain in force because they regulate issues outside the scope of investigations, such as compensation for wrongful conviction. A handbook for practitioners will clarify this issue in future.

Territorial scope

The Directive will apply to all the EU Member States with the exception of Denmark (because of the general exclusion of this country from Justice and Home Affairs measures– see Protocol 22 attached to the Treaties) and of Ireland which, until now, has not “opted in” as it has the faculty to do according to Protocol 21 attached to the Treaties. Surprisingly the UK “opted in” and so took part in the vote even if by …abstaining. (Note: by so doing it also avoided national parliamentary scrutiny).

Due to the position of Ireland and Denmark, the former Framework Decision on the European Evidence Warrant has not been repealed, so will “survive”, but only for the relations between Ireland and Denmark and the other EU Member States. Probably the legislator wanted to still the door open to Ireland for a late “opt-in” (still possible any time after the adoption of an EU JHA act – see Article 4 of Protocol 21).

This tricky (and hopefully transitional) legal situation has obliged the legislator to use in Article 34 of the Directive a generic and flexible reference to “…the Member States bound by this Directive” (a formula already used for the “Human Trafficking” Directive, as well as other measures such as EU asylum legislation).

These are legal acrobatics which do not strengthen legal certainty and have already triggered some public statements by several Member States which very politely urge the Commission and the Presidency to …”consider possibilities to ensure legal clarity on the repealing of the Framework Decision [on the European Evidence Warrant] for all Member States.”  

From legal assistance to mutual recognition

The huge advance of the new text is that it makes the transition from the mutual legal assistance mechanisms, where the requested State has a wide discretion to comply with the request of another State, with a mutual recognition mechanism where each State must in principle recognise and execute a request coming from another Member State. By choosing the word “order” and by referring to “issuing” and “executing” States, in place of “requesting” and “requested” States, the legislator clearly indicates how the system has changed.

In the same perspective the execution of an EIO should not be refused on grounds other than those stated in Article 11 of the Directive (such as human rights, territoriality, national security and double jeopardy), although the executing authority will be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it it is still possible to achieve similar results. Article 12 of the Directive set also mandatory deadlines for carrying out the investigative measures and requires that the recognition or execution should be carried out with the same priority and speed as for a similar domestic case.

Building on Mutual (but not blind) trust…

The mutual recognition regime been so incisive for the national systems of criminal law it is not surprising that several civil society organizations, academia and even ...Eurojust raised several reservations on the introduction of a too ambitious EIO.

The main message was to take better into account the specificity of the national systems as well as the need to protect fundamental rights and the proportionality principle - all concerns already raised as regards the implementation of the European Arrest Warrant (EAW), which is at the same time the most successful but also controversial mutual recognition EU measure.

This time, all these aspects have been thoroughly negotiated by the European Parliament which engaged a strong four year dialogue with the member states representatives (from the presentation of the proposal in April 2010 until February 2014) before reaching, after twelve trialogues and several technical meetings, a “first reading agreement” on the text.

Fundamental rights and mutual recognition: resolving the conflict?

 

The EP’s role can best be seen in recital 19 in the preamble to the Directive, which states:

“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is reflected in Article 11(1)(f) of the Directive, which permits a refusal to execute an EIO on human rights grounds. To qualify as “rebuttable” in a legislative text the presumption of compliance by another Member State with EU law and fundamental rights is an important progress in an European Union which since the Tampere programme has considered mutual recognition to be the cornerstone of the judicial cooperation in criminal matters and which until now has usually made only generic reference to protection of fundamental rights in mutual recognition instruments (one exception is the Framework Decision on the mutual recognition of financial penalties).

However by suggesting this wording the EP extended to criminal matters the principle expressed by the CJEU in EU asylum policy with the N.S.ruling, which states:“

The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The Court considers that the Member States have a number of sufficient instruments at their disposal enabling them to assess compliance with fundamental rights and, therefore, the real risks to which an asylum seeker would be exposed were he to be transferred to the Member State responsible”       

By analogy with the NS case, the refusal to execute an EIO on human rights grounds must logically be mandatory, even though the legislation suggests that such a refusal is optional. But it should be noted that the wording of the Directive suggests that a defect in another Member State should be judged in individualcases, whereas the NS ruling referred rather to “systemic deficiencies”.

Primacy of EU law and protection of national constitution’s principles

But the EP was also concerned for the respect of the protection of the fundamental principles of the national criminal law systems. These principles can be protected by the Member States during the negotiation of an EU measure by using the so called “emergency brake” foreseen by Articles 82 and 83 TFEU. The point remain how to take in due account these same fundamental aspects also after the adoption of an EU measure.  The EP considered that the CJEU jurisprudence on Radu and Melloni (dealing with the implementation of the EAW) and giving priority to EU law also against constitutional principles in the Member States was going too far, so it insisted upon making explicit reference to the Member States’ constitutions.

The result of this pressure is mirrored in the first part of recital 39 in the preamble, which states :

“This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application..”.

The final words of this recital echo Article 53 of the Charter of Fundamental Rights, which deals with the relationship between the Charter and (inter alia) national constitutions. While the CJEU found in Mellonithat Article 53 justified setting a ceiling on national constitutional protection in that case, that judgment concerned an issue which had been extensively regulated by EU law (in absentiatrials as a ground for refusal), whereas there are no equivalent provisions in the EIO Directive.

Will this text be sufficiently clear to push the CJEU to recognise a wider “margin of appreciation interpretation” of national authorities as regards JHA, as suggested by the former Advocate General Francis Jacobs some time ago?  We may have still to wait for years before knowing the right answer. However, it could be arguable that in the meantime, the CJEU should take the rules in this Directive regarding the relationship between human rights and mutual recognition into account when interpreting other EU mutual recognition measures, such as the EAW.

Conclusion

These are only some general observations on a Directive which requires a deeper analysis. However it is worth noting that the Directive makes already explicit reference to the first three post-Lisbon measures dealing with procedural guarantees for criminal suspects, namely:

-          Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings;

-          Directive 2012/13/EU on the right to information in criminal proceedings; and .

-          Directive 2013/48/EU on the right of access to a lawyer and the right to communicate when deprived of liberty.

Even though these are still only among the first EU criminal law texts adopted following the entry into force of the Treaty of Lisbon, all the pieces of the mosaic are progressively falling into place.

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