The Calais crisis: which Member State is responsible?

Steve Peers

Several thousand migrants are living in poor conditions near Calais, many apparently intent on making it to the UK. Their attempts to find passage via the Eurotunnel are severely delaying travel on both sides of the border. Which country is responsible for them: the UK or France?

At the outset, we should note that this is in a way a clash between two different types of movement within the EU. On the one hand, we have the free movement that the EU specifically tries to encourage: the free movement of goods in the lorries, persons in the trains, and transport services in either context. On the other hand, we have what the EU calls ‘secondary’ movements of (potential) asylum-seekers, which it specifically tries to discourage. EU internal market law is adopted to facilitate the first type of movement, while EU asylum law is harmonised to reduce the incentive for the second type.

Of course, the migrants don’t actually want to shut EU free movement down, since that would defeat their whole purpose. They merely want the lorries to slow down long enough to stow away on board, then continue on their journey – in effect bringing the two types of movement together. It’s the government attempts to prevent this that leads to near-gridlock.

But which of those governments is responsible? Let’s examine the issue first from the migrants’ perspective, and then from the free movement perspective. (While some consider the word ‘migrant’ offensive, I will continue to use it. In my view, it simply refers to a category of people, like teachers or nurses. It would make sense to refer to them as ‘asylum-seekers’ or ‘refugees’ only if it were clearly the case that almost all of them had applied for asylum or qualify as refugees; the available information doesn’t indicate this clearly enough. The word ‘migrant’ doesn’t deny their humanity; it simply explains their situation.)

Immigration and asylum law

Some of the migrants have applied for asylum in France, and so their position is governed by EU asylum law. This includes the Dublin Regulation, which determines which Member State is responsible for their application. That may not be France, but rather the Member State which they first entered – if France can prove that they entered there. If France cannot prove that another Member State is responsible, then it must assume responsibility. The UK would only be responsible for their applications if they have close family members in the UK, living there as refugees or asylum-seekers.

In the meantime, while the asylum-seekers are on French territory, the EU’s Directive on reception conditions for asylum-seekers applies. The EU Court of Justice has specifically ruled, in a case involving France, that this Directive applies to the State where asylum-seekers are currently located, even if the Dublin rules say those asylum-seekers should be transferred to another Member State. It only applies to that other Member State once the asylum-seekers are actually transferred there. This ruling obviously applies a fortiori to asylum-seekers who simply want to travel to another Member State and apply there instead. The whole point of the Dublin Regulation is to deny asylum-seekers exactly that choice. Although the Regulation fails epically in practice to stop asylum-seekers trying to choose the State they would like to apply in, the Directive still applies to ensure minimum living standards for asylum-seekers in the State they are present in.

What does that mean in practice? The Directive requires the Member State where the asylum seekers are present to ensure basic standards as regards welfare and accommodation, among other things. It appears from press reports that these standards are not respected as regards the migrants near Calais.

Furthermore, the latest EU Directiveon asylum procedures, which applied from last week, sets deadlines to deal with asylum claims. That part of the Directive doesn’t apply until 2018, but it could be argued in the meantime that the principle of effectiveness of EU law (which the CJEU has frequently applied in immigration law cases) requires asylum claims to be dealt with efficiently, not just ignored.  As for the substance of asylum law, some press reports suggest that France gives asylum to Eritreans much less often than the UK (and much of the rest of the EU). This may be due to a flawed application of the EU’s Qualification Directive. If this is not being fixed in the French courts by an asylum-seeker’s appeal or a judicial review by NGOs, then the Commission should identify the specific error in interpretation of the law and bring infringement proceedings against France.

But not all of those migrants have applied for asylum. For those people, since it seems unlikely that any of them are legal migrants, this must mean that they are irregular migrants. Their position in France is therefore governed by the EU’s Returns Directive, which specifies that the Member States must issue irregular migrants with a return order and try to enforce their expulsion to a country of origin or transit as soon as possible. The EU Court recently ruled that Member States could not simply issue irregular migrants with a fine and make no effort to remove them. It must equally follow that Member States cannot turn a blind eye to their existence, when (as in the Calais case) a large number of them are openly staying on Member States’ territory.

The Returns Directive does not create an absolute obligation to remove irregular migrants. First of all, a Member State can choose to regularise their position at any time. Secondly, if they apply for asylum, EU asylum law applies, until the end of the asylum process, when they are either recognised as needing protection or their application fails its final appeal. In the latter case, the Returns Directive then applies again. Thirdly, it may prove impossible in practice to remove them to their State of origin or transit, because there is not enough proof of where they come from.  In that case, they remain in a kind of limbo, unless the State chooses to regularise them. Irregular migrants are entitled to emergency health care and essential treatment of illness during their stay. As far as we can tell from press reports, it does not appear that the French authorities are making any active effort to return the irregular migrants in Calais to their countries of origin or transit pursuant to the Directive.  

Free movement law

The CJEU has ruled, in a case involving France, that Member States have a responsibility to prevent free movement of goods being disrupted by private individuals. While States have a margin of discretion exactly how to deal with that private behaviour, it is not unlimited. In that case, farmers’ groups had been vandalising lorries full of other Member States’ produce for years on a regular basis, and many of the perpetrators were known to the police. France was therefore liable for doing nothing very effective to stop this. It was compensating the victims, but this was not enough.

On the other hand, in the case of Schmidberger, Austria was not liable for allowing a disruption to trade by private protesters who briefly blocked a transit route. According to the CJEU, the protesters’ right to demonstrate overrode the free movement of goods, given that the disruption didn’t last very long.

What about industrial action? This is also a separate source of the current restrictions on movement between the UK and France. On this point, the CJEU has been quite critical of trade union action that restricts free movement: in the controversial cases of Viking Line and Laval, it ruled that while EU law recognized trade unions’ right to strike and take other collective action, these rights were easily overruled by EU free movement rules. But those cases concerned the freedom of establishment and free movement of services; the current strikes in France affect the free movement of goods. An EU Regulationadopted after the earlier French case states that while States have an obligation to deal with private disruptions to the movement of goods, this is without prejudice to the right to strike.

Applying these cases to the current problems at the UK/France border, it’s not clear whether the disruptions caused by strikes are an unjustifiable restriction on free movement.  The strikes seem only to concern pay and conditions, whereas in Laval and Viking Line, while the disputes were also indirectly about pay and conditions, they were mainly directed at shutting down free movement due to perceived ‘social dumping’.

What about the disruptions linked to the migrants’ attempts to travel to the UK?  While EU law does recognize a right to asylum, it’s possible to apply for that right in any Member State, and so it is not necessary to travel to the UK to that end. The number of migrants would surely be reduced if France applied its obligations to: process asylum applications; decide on Eritrean claims correctly; and remove irregular migrants who had not applied for asylum. France must also extend basic standards of welfare and housing to asylum-seekers, whether that acts as a 'pull' factor or not. 

Is the UK liable in any way? The UK does exercise border controls on French territory, pursuant to a treatybetween the two countries on ‘juxtaposed controls’, agreed in the context of the Channel Tunnel. But the UK’s obligations under that treaty do not extend to admitting asylum-seekers or other irregular migrants who want to use the tunnel to travel to the UK. More broadly, the UK’s border checks in France don’t turn any part of France into British territory, just as the reciprocal French border checks in the UK don’t turn any bits of Kent French, or transfer St. Pancras station to the Paris metro system.

So France is responsible for the impact on free movement, due to its separate breaches of EU immigration and asylum law. This shouldn’t be seen as a selfish or parochial conclusion; after all, it’s not really radical to say that States are generally responsible for what happens on their territory. That’s the normal rule of public international law, and it’s linked to the basic principle of State sovereignty. The EU rules in this case reflect that principle.

Having said that, allocating responsibility does not as such solve the problem. It would be open to the French government to denounce the treaty on juxtaposed controls, with a negative impact on the UK. So it makes sense for the UK government to offer a contribution to solve the problem, even if it is not obliged to do so. The government has already accepted this principle, paying for the construction of a security fence. And it would equally make sense to make a contribution as regards immigration issues, for instance the costs of removal or basic support, linked to a requirement to move to other parts of France to receive that support.

Barnard & Peers: chapter 26

Photo credit: BBC  

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The Essent judgment: Another revolution in the case law on free movement of goods?

Filippo Fontanelli, Lecturer in International Economic Law, University of Edinburgh

Introduction

On 11 September 2014, the Court of Justice of the EU delivered the judgment in the Essent case (Joined Cases C-204 to C-208/12, not to be confused with Case -91/13, also named Essent, of the same day). The judgment contains a delicate assessment of proportionality involving several interlaced interests: promotion of free energy trade, protection of the environment and human health, compliance with international commitments on emission-reduction, promotion of local employment, and incentives to achieve energy self-sufficiency.

If this maelstrom of values were insufficient to raise the interest of the readership, the judgment has also a purely doctrinal undertone. Indeed, the Court appears to ignore – deliberately – the summae divisiones which it itself has maintained for decades between distinctly and indistinctly applicable measures, as well as between justifications under Article 36 TFEU (which set the explicit Treaty-based grounds for restricting the free movement of goods) and other mandatory requirements (the other grounds for restricting such free movement). Thousands of EU law academics might now need to finally drop the standard exam-questions on “Measures equivalent to a quantitative restriction (MEQRs) from Cassis to Keck and beyond” yearly rephrased and administered since time immemorial: it might turn out that, after all, Cassis is no longer good law.

The case

The facts of the main proceedings relate to a complex domestic regulatory regime which, in turn, implements devilishly detailed EU acts. However, the crux of the dispute is easily summarised: a Flemish Regional scheme requires energy suppliers connected to the electricity grid to demonstrate the use of a certain amount of renewable energy, on pain of a hefty penalty. Only locally produced green energy counts toward that quota, hence suppliers cannot use green energy produced abroad to prove compliance.

Essent could have met or at least approached the quota had it been allowed to factor in the calculation renewable energy that it had sourced from Norway, Denmark, Sweden and the Netherlands, but it was not. It then incurred a series of yearly sanctions, and challenged them repeatedly before the Belgian courts. The Belgian judges raised a preliminary question to the Court of Justice asking, essentially, whether the discriminatory treatment of foreign green energy towards the fulfilment of the compulsory quota is in violation of the treaty obligations regarding freedom of movement of goods and the prohibition of discrimination based on nationality.

[Skip to the next section if you arrived to this post by Googling “mandatory requirements” and you must submit your essay three hours from now. For the others, a few words on the legal context of the dispute.]

Directive 2001/77 (governing the facts of the main proceedings, now replaced by Directive 2009/28) recognizes that renewable energies are underused in the Union, an unfortunate circumstance given that the development of a green energy industry could, at once, alleviate the dependence of EU countries from foreign supply, contribute to the fulfilment of the climate-change commitments entered into under the Kyoto protocol, and foster local employment policies. Therefore, the EU encourages national schemes supporting the consumption of renewable energy, without harmonising them. Better, “until a [Union] framework is put into operation”, which is presumably in the works (see recital 14 of the Preamble of Directive 2001/77).

In order to facilitate the trade in green energy, the Directive established a compulsory system of certification, whereby energy derived from renewable sources is entitled to a “guarantee of origin”. Guarantees of origin issued in EU members are mutually recognized across the Union.

National support schemes can provide various incentives to facilitate the production and consumption of green energy. Typically, benefits are available only to producers and suppliers handling green energy, which necessarily hold the relative guarantees of origin. However, member states are not required to make the specific benefits dependent on the possession of the guarantees. The Preamble of the Directive is clear in this sense: “[s]chemes for the guarantee of origin do not by themselves imply a right to benefit from national support mechanisms established in different Member States”. Guarantees of origin are therefore necessary but possibly insufficient conditions to enjoy national incentives.

The Flemish scheme implementing the Directive, for instance, is premised on the possession (and periodic surrendering) of “green certificates”. Green certificates are granted to producers of green energy based in the Flemish region, which sell them alongside the energy. Suppliers are under an obligation to surrender a certain quota of green certificates to avoid sanctions. At the stage of surrendering, guarantees of origin attached to green energy purchased abroad cannot substitute for the missing green certificates to fill the quota.

A provision of the relevant Flemish Decree envisages the possibility for the Flemish government to accept non-Flemish certificates for the purpose of filling the quota, but no implementing act has been adopted to regulate this possibility, which therefore remained wishful thinking.

The Flemish scheme was challenged under the Directive, under Article 34 TFEU prohibiting measures equivalent to quantitative restrictions (MEQRs), and under Article 18 TFEU prohibiting discrimination based on nationality.

The Directive clearly does not require Member States to link support schemes to guarantees of origin. It simply requires States to issue them and recognize them across the Union, so that consumers are always informed of the green-ness (or lack thereof) of the energy they purchase.

The real challenge to the Flemish scheme was brought under Article 34 TFEU. The domestic measure encourages suppliers operating in the Flemish regions to buy renewable energy from local producers, as equally green foreign energy is unusable towards fulfilment of the quota. Local green energy is artificially made more precious, because of the green certificates it is associated with, which rational producers must crave, to avoid fines. The restrictiveness of the scheme was plainly acknowledged by the Court (para. 83), although it focused on the trade of electricity rather than the trade of guarantees of origin, an impossibly murky issue that would have required determining whether intangible guarantees qualify as “goods”.

The Court therefore examined whether the scheme was justifiable “on one of the public interest grounds listed in Article [34 TFEU] or by overriding requirements” and whether it satisfied the test of proportionality (para. 89).

The purpose of the scheme was found in the promotion of the use of renewable sources for producing energy (para. 95). This legitimate purpose does not feature in Art. 36 TFEU and therefore, by exclusion, was provisionally accepted by the Court under the doctrine of the rule of reason. Under this principle, domestic measures setting mandatory requirements on goods, which restrict inter-state trade, are justified if they pursue a reasonable policy objective and the restriction entailed is not disproportionate to the contribution made towards that objective. Mandatory (or “overriding”) requirements are not limited to the values listed in Art. 36 TFEU, and routinely include objectives such as consumer interests and environmental protection. In its customary incarnation, the rule of reason can only be used to justify rules that do not discriminate according to the origin of the goods.

The reasoning of the Court on the proportionality of the Flemish scheme is not linear, but proceeds by accumulation. It essentially lists the reasons why the scheme is not as vicious as Essent would claim, invoking contextual elements, policy considerations and semantic tricks. In short, the Courts makes the following remarks, which I briefly assess in the brackets.

Essent claimed that the Flemish scheme does not encourage the consumption of green energy, but only its production. The Court objected (para. 98) that this is normal, as the greenness of energy relates precisely to its method of production (This is a massive non sequitur. If taken seriously, this would mean that green energy might as well be wasted after production, as the benefit to the environment was done already. To the contrary, the only raison d’être of renewable energy is that it is supposed to supplant the consumption of non-renewable energy).

The Court also noted that Member States are allowed by the Directive to set national targets of production of green energy (para. 99), suggesting perhaps that the discrimination inherent in the support scheme was dictated by the concern to achieve these targets (This suggestion is misleading. Whether its motivation is allowed or not by EU law has nothing to do with the EU-compliance of the Flemish measure).

The Court answered also the most difficult question. If the Flemish scheme genuinely aims to increase the production of green energy for environmental purposes, how come it does in fact discourage the purchase of green energy produced abroad, by refusing to accept foreign guarantees of origin as substitutes of Flemish green certificates? The brief answer is worthy of a Sibyl: “it should be observed that the starting points, the renewable energy potential and the energy mix of each Member State vary” (para. 100) (This is too obscure to attempt a reading. Suffice it to say that because guarantees of origin are subject to mutual recognition under the Directive, one would presume that these alleged variations are capable of being taken into account to certify the green nature of the energy, therefore an equivalence between Flemish certificates and any other guarantee is arguably possible to concoct).

Finally, the Court noted (para. 101) that national support schemes are important to achieve the objectives of the Directive (irrelevant per se) and that “it is essential that Member States be able to control the effect and costs of their national support schemes according to their potential, whilst maintaining investor confidence” (para. 102) (With a bit of effort, one can see why discrimination is justified: Member States do not want to make available to all EU producers subsidies whose cost is “ultimately [borne] by the [local] consumers” (para. 107). Also, they cannot suddenly withdraw support schemes when it turns out that they operate mainly for the benefits of foreign producers: investor claims would follow and hit hard).

“In the light of the foregoing,” the Flemish scheme was found to be proportionate, and therefore compliant with Article 34 TFEU (para. 103).

The Court then extended the proportionality analysis to other accessory elements of the schemes. It considered the penalties imposed, leaving it to the national judge to assess their proportionality to the sought objective (para. 114). It also speculated on the fairness of the market of green certificates that can fulfil the compulsory quotas, whose supply is artificially restricted. The Court therefore advocated the establishment of mechanisms under which these certificates can be traded “under fair terms” (para. 111). The irony of the last remark is highlighted in the comments below.

Comments

The Court nonchalantly applied a mandatory requirement to a facially discriminatory measure, sending Cassis to the museum of judge-made law no longer in force, and tacitly ignoring the exhaustiveness of Article 36 TFEU. It conflated overriding requirements and values listed in Article 36 TFEU into a single pool of excuses.

The passing reference to the contribution of reduced emissions to human health (para. 93) should not mislead: if human health hat were indeed the relevant objective of the Flemish scheme, it would have been at the centre of the ensuing proportionality test (just to mention one element, there should have been an analysis of the Flemish scheme’s contribution to increased health protection). That the quota has discriminatory effects which hinder trade was also undoubtable.

Therefore, a distinctly applicable measure was justified on the basis of a public interest other than those listed in Article 36 TFEU. This had also been the case in the parallel case of Ålands Vindkraft, C‑573/12, on which the Court delivered its judgment on 1 July 2014; see paras. 76-77 (the Opinion of this case was also prepared by Bot, and delivered shortly after his Opinion in Essent). Indeed, the Court has seemingly lost interest in making a big deal of the difference between discrimination de jure and discrimination de facto.

Advocate Bot had suggested the Court to abandon the distinction and expressly overturn its previous case-law. The Court did the former but not the latter, suddenly dropping a carefully constructed judicial test that it itself had devised in the wild years of Article 34 TFEU to accommodate reasonable policies which fell outside the scope of Article 36 TFEU.

That direct and indirect discrimination should be treated alike makes perfect sense. This is, for instance, the practice in the GATT, the agreement regulating the removal of trade barriers for trade in goods in the WTO regime. Treating them differently, for instance allowing one to be justified by excuses that do not apply to the other, is irrational: the hindering effect of de jure or de factodiscriminatory measures can be identical in the facts, and a harsher treatment of direct discrimination serves only as an incentive for Member States to disguise discrimination on the basis of nationality within the folds of maliciously designed neutral measures.

However, there was some intuitive value to the bygone distinction: direct discrimination is prima facie illegal and must be hard(er) to justify. Think of the judgment in Test-Achats, which does not even attempt to look at a justification for gender-based direct discrimination. In fact, as registered by AG Kokott in the Opinion to that case (para. 59), justifications based on statistical data can support a proportionality assessment of indirectdiscrimination but cannot suffice to excuse directdiscrimination.

In his proposal, AG Bot had reflected this concern, calling for a reinforced test of proportionality applicable to distinctly applicable measures: the reasons advanced to justify direct discrimination must be of particular weight. See at para. 94: “I think that discriminatory measures, particularly those which infringe a principle as fundamental as that of the prohibition of direct discrimination on grounds of nationality, ought to be subject to a strict requirement of proportionality” (emphasis added).

The Court did not deem it necessary to devise a reinforced (“strict”) proportionality test and, in my view, this might have contributed to a puzzling proportionality analysis, which features several controversial passages.

In short, by applying the routine test of proportionality the Court focused on the pursued objective (protection of the environment through increased production of green energy). In so doing, the discriminatory (and trade-restrictive) nature of the Flemish scheme was side-lined in the analysis. Once a decent contribution to the environment was somewhat found, it was downhill from there. The happy run of proportionality apparently skipped the stop of necessity: was there a less restrictive measure available for Flemish authorities to encourage the consumption and production of green energy? Yes there was: the interchangeability of green certificates and foreign guarantees of origin would have averted trade-restriction and promoted environmental protection even more than the Flemish scheme could possibly do.

The measure can only appear proportionate if the elective purpose is another unconfessed one, which is itself somewhat discriminatory. For instance, it could be argued that the growth and operation of a local green-energy industry is the real purpose, and therefore no alternative policy is available: any infant industry policy inherently involves some deal of temporary protectionism, but is for a good cause. The Court, however, did not resort to this “lesser-evil” reasoning, and pretended that discrimination is fully justified by the environmental purpose of the measure at large.

The irony of the finding is the after-thought of the Court with respect to the fairness of the market for green certificates. By virtually banning substitutable foreign certificates, the Flemish government is providing absolute protection to local producers, which might be few in number and, by definition, have the luxury of setting a higher price than they could if an undistorted transnational market were in function. Formally, there is no ban, but the value of local certificates is artificially inflated by the Flemish schemes, and makes it inconvenient for energy-suppliers to purchase green energy from abroad. This is a textbook example of a market distorted by protectionism, where demand is forced to opt for the local product, and foreign competitors are treated much less favourably. The Court concedes that buyers of green certificates, which need to comply with a compulsory quota, might find it unfair that the supply of certificates is artificially restricted to the collective monopoly of local producers, which can charge above-market prices. Local content requirements such as those envisaged by the Flemish scheme constitute a prototypical instrument of protectionism, and not surprisingly they are included, for instance, among the measures prohibited in the WTO Agreement on Trade-Related Investment Measures. It does not get any more protective and trade-distorting than that.

However, the Court limits itself to elegantly call for some “mechanisms” to ensure that suppliers can purchase green certificates “under fair terms” (para. 111), a puzzling statement in light of the previous validation of a protectionist scheme which is trade unfairness incarnated.

Ultimately, this is a memorable case, because it seemingly puts to bed the rule of reason as we knew it. Also, the reasoning on the merits is very hard to decode because the dropping of direct discrimination as a crucial element of the analysis resulted indeed in a confusing assessment of proportionality, which often loses sight of the differential treatment at stake and forgets about the necessity test altogether.

Barnard & Peers: chapter 12, chapter 16, chapter 22

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