Procedural rights and subsidiary protection

By Steve Peers

The first phase legislation of the Common European Asylum System (CEAS) set out a definition of ‘subsidiary protection’ (protection for those individuals who did not qualify for refugee status, but who still should not be sent back to their country of origin) in the Qualification Directive. However, other first phase CEAS legislation, most notably the asylum procedures Directive, did not apply to those applying for subsidiary protection. Nor did that legislation expressly regulate the relationship between refugee and subsidiary protection status.

This rather peculiar gap has been filled in several ways. First of all, as for the future, the second-phase CEAS legislation applies fully to applicants for subsidiary protection, and also regulates the relationship between refugee and subsidiary protection status. However, some of that legislation will not apply until July 2015; most notably, the Directive on international protection procedures (which replaces the asylum procedures Directive) will only apply to applications made after that point.

Secondly, a large majority of Member States already have a ‘one-stop shop’ procedure, in which applications for subsidiary protection are considered along with applications for refugee protection. In that case, the rules in the asylum procedures Directive apply to the whole procedure.

Thirdly, where Member States do not have such a procedure, the CJEU ruled in the M judgment that the general principle of EU law, set out in Article 41 of the EU Charter of Fundamental Rights, on the ‘right to good administration’, applied to the national process of considering subsidiary protection claims, even though the wording of the Charter restricted that right to EU bodies (as distinct from national administrations).

Today’s judgment in HN raises further questions about the nature of the procedure for deciding on subsidiary protection claims in Member States which do not have a ‘one-stop shop’. Furthermore, it has broader relevance beyond such situations. Like the M case, the HN case concerns a subsidiary protection application made in Ireland. Irish law not only requires two separate procedures for examining refugee and subsidiary protection status, but also requires the first issue to be resolved before the second one is. Mr. HN, who considered that he had no chance of success as regards refugee status but a good argument for subsidiary protection status, argued that these rules breached EU law.

 According to the CJEU, they did not. First of all, in light of the pre-eminence of Geneva Convention refugee status in the Treaties and secondary EU law, subsidiary protection is ‘intended for third country nationals who do not qualify for refugee status’. It followed that ‘an application for subsidiary protection should not, in principle, be considered before’ an authority concludes that an application for refugee status is unfounded. So the national law could not be criticised on that ground.

The CJEU also considered two other aspects of EU law: the principle of effectiveness and the right to good administration. As regards effectiveness, while Member States have some discretion to regulate the subsidiary protection process unless they have a ‘one-stop shop’ in place, such discretion is not unlimited. Since a two-step process delays the application process, it must be possible to make an application for both types of status at the same time, and to consider the subsidiary protection claim ‘within a reasonable period of time’, taking account also of the time taken to decide on the refugee claim first.

As for the right to good administration, the CJEU confirmed that Article 41 of the Charter was applicable to national proceedings linked to EU law. In this case, the relevant provisions were the right to an impartial decision, and the right to a decision within a reasonable time. The ‘reasonable time’ rule applied in the same way as the principle of effectiveness. Furthermore, the principle of impartiality was not violated simply because the applicant had been told, due to the failure of his refugee claim, that he might be deported, even before the subsidiary protection application was decided.

Comments

There are a number of broader implications of the Court’s ruling. First of all, its confirmation that Article 41 of the Charter applies to all national proceedings within the scope of EU law is relevant well outside the scope of asylum law, and is therefore important given the large role that national administrations have in implementing EU law. For instance, the finding could be relevant as regards immigration, free movement or tax decisions (along with many others).

Secondly, while the Court’s judgment refers specifically to the right to an impartial decision, and to a decision within a reasonable time, there are several other aspects of Article 41 which must be equally applicable to national administrative decisions linked to EU law. In the M judgment, the CJEU already referred to the right to be heard. Article 41 also refers to fair administration, access to the file, the obligation to give reasons for decisions, a right to damages and linguistic communication rights.

As for the issues specific to asylum law, the Court’s judgment must logically mean that Article 47 of the Charter (the right to a court and an effective remedy) is also applicable to subsidiary protection claims by analogy, even in Member States without a one-stop shop. Arguably the EU Charter’s rights to dignity and social protection are also applicable to applicants for subsidiary protection in such Member States.

The Court’s approach in the M and HN cases is also relevant by analogy to cases where people apply for refugee or subsidiary protection in Member States from outside EU territory, after interception on the high seas for instance. While the asylum procedures Directive does not apply outside EU territory, there is no such geographic limit on the scope of the qualification Directive. So logically, the latter Directive applies to claims made outside of EU territory to Member States, and the Charter applies as regards procedural rights in such cases.

The Court’s approach to the relationship between refugee applications and subsidiary protection applications will make it more difficult for applicants to avoid the imposition of the EU’s ‘Dublin’ rules on allocation of asylum cases simply by means of withdrawing a refugee application, but simultaneously making or maintaining a subsidiary protection application. But this point is only relevant to applications made before the start of 2014 anyway, since as from that date the Dublin III Regulation applies, and that Regulation has extended the ‘Dublin’ rules to cover subsidiary protection applications.

What about the relationship between refugee status and purely national forms of protection outside the scope of the qualification Directive? There is nothing in the Court’s ruling today that addresses the relationship between such national forms of protection, which have not been harmonised by EU law at all, and the qualification Directive (or other EU asylum law, such as the Dublin rules). So it is still open to argue, for instance, that the Dublin rules cannot apply if a person is expressly applying only for a national form of protection. Conversely, it might be desirable to argue that the HN judgment applies by analogy if a Member State awards an applicant for refugee and/or subsidiary protection a purely national form of status, which gives that person fewer rights, without considering the former claims on the merits.

It is clear from this judgment that a claim for refugee status must always be refused before the possibility of subsidiary protection can be examined. This rule applies even before the second-phase procedures Directive sets it out expressly in EU law, and so applies to applications made before July 2015, including pending applications. Arguably, a Member State which has already awarded a person subsidiary protection without considering the merits of a refugee application can be called upon to reopen that process. However, it might be necessary for further case law to clarify the position where a person wishes to appeal the decision to refuse refugee status while the consideration of the subsidiary protection claim is ongoing.

Finally, it should be noted that even though the UK and Ireland have opted only into the first-phase qualification and procedures Directives, some key rules in the second phase legislation nevertheless apply to them, as a result of the CJEU’s interpretation of the first phase rules in its case law. In particular, they are bound by some basic procedural rules as regards subsidiary protection applications; they must consider a refugee claim before a subsidiary protection claim; and they must decide those claims within a reasonable time (although that rule is less precise than the precise time limits in the second-phase procedures Directive). So just because a rule appears expressly in the second-phase asylum law, but not in the first-phase asylum law, it doesn’t necessarily mean that the UK and Ireland are not bound by it; it is still possible that the first-phase legislation contains that rule implicitly. Of course, this is only one of the many legal complications arising from the complex system of opt-outs from EU law.


Barnard & Peers: chapter 8, chapter 26

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Interpreting the Conditions for Family Reunion

Georgios Milios

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

On 30 April 2014, Advocate General Paolo Mengozzi delivered an opinion on cases Dogan and Noorzia regarding the interpretation of two different provisions of Directive 2003/86 (the family reunification Directive). In particular, the CJEU was asked to consider whether the issue of a residence permit to a family member of a third-country national can be made conditional upon the submission of evidence that the family member has basic knowledge of the language of the Member State concerned and whether Member States may require that in a family reunification case the spouses must be at the age of 21 at the day of submission of the application rather than at the day of the decision regarding this application. The Dogan case also raised the question of whether such measures violated the standstill clause in the EU/Turkey association agreement, but that topic will be the subject of a separate post in this blog.

The AG’s opinion in both cases is definitely worth analysing as the controversial Directive has been widely criticized for being particularly strict with regard to the immigrants’ right to family reunification. Taken that there are indicators that several Member States have not implemented the already strict provisions of the Directive correctly, the AG’s opinions, although lacking binding effect, are very useful as they provide us with a thorough analysis of two crucial provisions of the Directive. Lastly, the AG’s opinion in these cases is suitable for a comparison with the Court’s earlier judgments in Chakroun and in Parliament v. Council.

The provisions at issue in the cases at hand are Art. 7 (2) Directive 2003/86 which provides that ‘Member States may require third country nationals to comply with integration measures, in accordance with national law’ and Art. 4 (5) Directive 2003/86 which provides that ‘In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’.

The facts in Dogan

Mrs. Dogan, who is a Turkish national living in Turkey, applied for a visa in order to join her husband, who is also a Turkish national living in Germany since 1998 and running a company there since 2002. The applicant enclosed in her application a certificate of knowledge of the German language (level A1) from the Goethe Institute stating that she had successfully passed the relevant exam with a grade 62 out of 100. The German Embassy considered that the applicant, being illiterate, had passed the exam out of luck and rejected her application on the grounds that she had not proven knowledge of the German language. The applicant did not appeal against this decision but re-applied to the German Embassy which rejected the application once again stating that the applicant does not have the necessary linguistic knowledge because she is illiterate.

The questions referred for a preliminary ruling to the CJEU

The applicant appealed against this decision to the competent court which decided to refer the following questions for a preliminary ruling to the CJEU: 1)  Does a provision of national law which provides that the acceptance to a Member State of a family member of a Turkish national is made conditional upon the submission of evidence that s/he has basic knowledge of the language of the Member State concerned violate Article 41 (1) of the Additional Protocol to the Association Agreement with Turkey? 2) Does the same provision of national law violate Art. 7 (2) of Directive 2003/86?

The opinion

  

The AG begins his analysis regarding Art. 7 (2) of the Directive with two assumptions. First, the AG notes that the second subparagraph of Art. 7 (2) provides that the integration measures of the first subparagraph can be applied to family members of refugees only after the latter have been granted family reunification. Therefore, a contrario interpretation of the provision shows that Member States can apply integration measures to immigrants who do not have the status of a refugee even before family reunification is granted. In the case at hand, taken that Mr. and Mrs. Dogan did not have refugee status, the German authorities were entitled to apply integration measures before Mrs. Dogan’s admission to Germany. Second, according to the Court’s previous jurisprudence regarding Directive 2003/86, authorisation of family reunification constitutes the ‘general rule’ and the provisions that may limit the exercise of the right to family reunification should be interpreted strictly (see Chakroun para. 43).

 

Furthermore, the AG goes on to consider the actual content of the term ‘integration measures’. In that respect, the AG notes that the term ‘integration measures’ should be distinguished from the term ‘integration conditions’. In his view, the two terms are different and by no means synonymous. This becomes apparent by a comparison between the first and the second paragraph of Art. 7. According to the first paragraph, the person who applies for family reunification may be required to prove that s/he meets several conditions contained in that paragraph. On the contrary, such evidence is not required in the second paragraph of Art. 7. Furthermore, the AG notes that if the legislator’s aim was to ensure that the integration measures referred to in Art. 7 (2) have the same status as of the conditions referred to in Art 7 (1), s/he would have included them as an additional element in the first paragraph and would not add a separate one. It follows that the ‘integration measures’ of Art. 7 (2), although they can be applied before entrance, mainly aim at facilitating integration in the Member States and do not constitute conditions for the acceptance in the territory of the latter.

Furthermore, the AG states that any national law which allows for a rejection of a family reunification application without giving the option of an individualized assessment based on the specific circumstances of each case violates the family reunification Directive. Therefore, a national law which does not take into consideration difficulties such as those concerning the health state of the family member, his/her age, illiteracy, disability and level of education is directly infringing the Directive. The AG further notes that in the present case, the German legislation provides that a spouse may be exempted from the obligation to prove knowledge of German if s/he is not able to provide such evidence due to sickness or physical disability. However, the relevant law does not refer to other personal circumstances such as those described above and does not provide that the personal and family circumstances referred to in Art. 17 of the Directive should be taken into consideration. The AG concludes that the fact that the applicant is illiterate is an obstacle that (in light of her age) may be particularly difficult to overcome and that in these circumstances, the language requirement in the German law is disproportionate to the aim of integration pursued in Art. 7 (2) and undermines the objective of the Directive.

The facts in Noorzia

Mrs. Noorzia, who is an Afghan national, applied on 3 September 2010 for a residence permit in order to join her husband, who is also an Afghan national and is living in Austria. Mrs. and Mr. Noorzia were born on 1 January 1989 and on 1 January 1990 respectively. The Austrian government rejected Mrs. Noorzia’s application as although her husband was 21 years old at the time of the decision regarding family reunification, he was under that age at the time Mrs. Noorzia submitted the application for the residence permit and therefore one of the requirements set out in the law was not met. Indeed, the Austrian legislator explicitly provided that the age limit of 21 years is a requirement for the issue of the residence permit to the spouse and that this requirement should be fulfilled by both spouses at the day of application and not at the day of the decision regarding the issue of the residence permit.  

The questions referred for a preliminary ruling to the CJEU

In these circumstances, the court referred the following question for a preliminary ruling to the CJEU: 1) Does a provision of national law which provides that family reunification may take place only if both spouses are 21 years old at the day of submission of the application for family reunification violate Art. 4 (5) Directive 2003/86?

The opinion

The AG in principle bases his answer on a literal, teleological and systematic interpretation of Art. 4 (5) Directive 2003/86. With regard to the literal interpretation of this provision, the AG notes that Art. 4 (5) provides that the spouse is required to be at the age of 21 before s/he ‘is able to’ join the third-country national. It follows that since the spouse is only ‘able to’ join the third-country national once the application is accepted, the requirement for a minimum age should be fulfilled at the time of the decision on the application for family reunification and not at the time of the submission of the application.

Subsequently, the AG makes a teleological interpretation of the provision. In his view, the aim of the provision is mainly to prevent forced marriages and to ensure better integration for the family member in the host Member State. In that respect, although the AG accepts as a general rule that setting a minimum age for the spouses before family reunification takes place may help in the prevention of forced marriages in the EU, there should be a balance between this aim and the right of spouses who have conducted a genuine marriage to exercise their right to family life as derived from Art. 8 ECHR and Art. 7 of the EU Charter of Fundamental Rights. Furthermore, the AG repeats that according to the Court’s jurisprudence the limitations upon the exercise of the right to family reunification should be interpreted strictly. Taken all the above into consideration, the AG concludes that requiring that the spouses should be at the age of 21 at the time of the submission of the application and not at the time of the decision on the application is less consistent with the objective of the provision. With regards to the provision’s aim for better integration, the AG notes that an extended separation may in fact have negative results as regards the integration of the spouse in the host Member State as such separation may loosen family ties.

Lastly, the AG makes a systematic interpretation of the provision stating that throughout the entire Directive, in the occasions that the EU legislator desired to set the time limit at the day of the submission of the application, s/he did it explicitly (see Art. 4 (6) and Art. 7 (1)). It follows that since the provision at hand does not explicitly refer to the day of submission of the application, the legislator’s intention was to set this time limit at the day of the decision regarding the application for a family reunification. In any event, the AG notes that the applicant can be required to prove when submitting the application that s/he is going to be 21 at the day reunification takes place.

Comments

The AG’s opinions in both cases seem to follow at least to a certain extent the line drawn by the Court in the two previous judgments regarding the family reunification Directive. The most important principle which seems to be picked from the Court’s earlier jurisprudence is that since family reunification constitutes the general rule, the limitations to the right to family reunification should be interpreted strictly and the margin of appreciation left to the Member States should not be used in a way that undermines the objective of the Directive (‘Since authorisation of family reunification is the general rule, the faculty provided for in Article 7 (1) (c) of the Directive must be interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof’ (see Chakroun para. 43)).

Moreover, the AG’s approach in both cases seems to follow the Commission’s guidance with regard to the family reunification Directive (which was discussed in an earlier blog post). In particular, regarding the minimum age provided for in Art. 4 (5), the Commission has stressed that the minimum age requirement should only be applied in order to prevent forced marriages and ensure better integration and in any case, it shall merely constitute one of the factors taken into consideration in the assessment of one particular case. The Commission concludes that the minimum age should be fulfilled at the moment of the effective family reunion and not at the moment of the submission of the application as Art. 4 (5) states that the sponsor and the spouse should be at the age of 21 ‘before the spouse is able to join him/her’ whereas Art. 7, for instance, clearly introduces the words ‘when the application for family reunification is submitted’.

Similarly, with regard to the integration measures referred to in Art 7 (2), the Commission notes that Member States may not refuse entry and stay on their territory to a family member on a sole ground that s/he did not succeed in the integration examination provided for in the domestic legislation of the Member State concerned and that ‘language and integration courses should be offered in an accessible way (available in several locations), be free or at least affordable, and tailored to individual needs, including gender specific needs (e.g. childcare facilities)’.

For all of the above, it becomes apparent that the AG in his opinions seems to adopt an ‘immigrant-friendly’ approach with regard to family reunification and follows the ‘guidance’ of the Court and of the Commission on that issue. This is particularly important taken that the family reunification Directive has been criticized for allowing Member States to set very low standards with regards to the applications for family reunification. To the extent that the Court will adopt a similar approach on the issues at hand, Member States will be further encouraged to apply the derogations and limitations of the Directive in a more favourable way towards immigrants, not only with regard to the integration measures of Art. 7 (2) and the age limit of Art. 4 (5) but to the restrictions set out in the entire Directive. National laws and domestic practices should as a general rule promote family reunification and not rely on strict interpretations of the Directive undermining the objective of the latter.  

Lastly, the AG’s opinions attract the attention for the importance that they attach to the individual assessment of the applications. In both cases, Member States should conduct an individual assessment and take other factors into consideration, such as illiteracy in the case of Mrs. Dogan. The same approach should be followed in the provision regarding the age limit. In case Member States have indicators that the marriage is genuine, they should not reject applications on the sole grounds that the spouses have not reached the corresponding minimum age, since that the risk of a forced marriage does not exist.


Barnard & Peers: chapter 26

 

 

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Bad drivers and EU law: The CJEU drives on the wrong side of the road

Steve Peers

There’s an old Canadian joke, which was once voted the ‘Most Canadian Joke Ever’ (mind you, it might not have faced much competition). An American, a Canadian, a Brit and a Frenchman walk into a bar. The barman (bizarrely) asks them each to write an essay about an elephant. The Frenchman writes about the elephant’s sex life. The Brit writes about the role of the elephant in colonial history. The American writes about the military use of the elephant (or perhaps, now, about the use of elephants to intercept telecommunications). And the Canadian writes: “The elephant: Does it fall within federal or provincial jurisdiction?”

Now, let’s add an EU law element. Say this group of boozy essay-writers is gathering in a bar in Luxembourg. An EU lawyer joins them. Inevitably, she writes her essay on ‘Which Treaty legal base regulates elephants?’ In fact, this is a genuine legal dispute, at least as regards trade in endangered elephants (does the Treaty rule on environment or on the common commercial policy apply?). And finally, the EU lawyer has brought along her German friend. He only agreed to come because the EU lawyer promised him that everyone would pay for their own drinks. But when he gets to the bar, he finds that the EU lawyer has successfully convinced everyone in Luxembourg that he has to pick up the whole tab for the evening.

While disputes over legal bases might appear to be a particularly arcane feature of EU law, they are usually manifestations of important disputes about how political power is exercised at EU level. Most often, the legal base dispute is really about the extent of the legislative power of the European Parliament, and/or the extent of Member States’ veto powers.

Today’s judgment on the legal base of the Directiveon the exchange of information on driving offences is about two other issues, however: the extent of the Commission’s monopoly of initiative, and the scope of the opt-outs relating to EU Justice and Home Affairs (JHA) law.

This particular Directive was first proposedby the Commission back in 2008, with a legal base relating to transport. Discussions on this proposal were soon blocked by disputes as to whether it should instead have a legal base relating to police cooperation – which would then have entailed unanimous voting and mere consultation of the European Parliament (EP). However, following the entry into force of the Treaty of Lisbon in 2009, the decision-making procedure relating to transport law, on the one hand, and (most) EU rules on police cooperation, on the other hand, were governed by the same decision-making rules (the ordinary legislative procedure) as far as the Council and EP were concerned.

But two differences remained: the Commission shared its power of initiative with groups of Member States as regards criminal and police cooperation measures, but not as regards transport law (or any other aspects of EU law); and the UK, Ireland and Denmark have opt-outs from the former area of EU law, but not from transport law.

The Belgian Council Presidency, in the second half of 2010, relaunched discussions o the Commission’s proposal and soon reached an agreement in the Council. The following Presidency reached an agreement with the EP, and the Directive was adopted in 2011. The UK and Ireland chose to exercise their opt-out, while Denmark was automatically excluded.

In a nutshell, the Directive sets out a process for exchange of information between Member States as regards specified common driving offences, such as speeding and drunk driving. The subsequent use of that information is then left to the discretion of the State which has received it.

The CJEU’s judgment

The CJEU ruled entirely in favour of the Commission, holding that the Directive concerned only transport issues. However, it kept the Directive in force for a year, placing the EP and the Council under an obligation to negotiate a new text by the end of that period. The new measure will obviously apply to all Member States, given the absence of any opt-outs relating to transport matters.

According to the Court, applying the usual rule of examining both the aim and content of EU measures to determine their correct legal base, both the aim and content of this Directive concern transport policy. First of all, its aim was to ensure a high degree of road safety, and the prior CJEU case-law had established that road safety was an aspect of the EU’s common transport policy. As the Court pointed out, the Directive applied regardless of whether the offences were regarded as administrative or criminal under national law. It aimed to ‘induce more cautious behaviour’ by drivers, ‘thereby helping to reduce the number of casualties due to road traffic accidents’.

As for the content of the Directive, it regulated the access to vehicle registration data by each national authority, as well as the notification to the drivers concerned. It also provides for possible further proposals by the Commission in 2016: this is a veiled reference to reviving the Commission’s previous controversial proposals to harmonise the law on drunk driving across the EU (ie, setting a standard maximum level of blood alcohol content). So the Court ruled that the content of the Directive also pursued the objective of road safety.

The Court then rejected the argument that the Directive fell within the scope of the legal base on police cooperation. While the EU powers on this issue have a wider scope since the Treaty of Lisbon entered into force, this cooperation is still limited to cooperation by police and other law enforcement authorities as regards ‘the prevention, detection and investigation of criminal offences’ (Article 87(1)). Also, the police cooperation legal base had to be interpreted in light of the general objectives of EU JHA law, as set out in Article 67 TFEU, which include ensuring ‘a high level of security’ by means of ‘coordination and cooperation’ between police and other authorities, as well as criminal law measures.

Comments

With great respect, the Court’s judgment is not convincing; but neither is the argument defended by the Council and the EP, which was supported by seven Member States and Advocate-General Bot.

As for the judgment, while the Court is correct to say that the aim of the Directive is road safety, its analysis of the content of the Directive is problematic. In those Member States which enforce some or all of the driving offences in question by means of criminal law, the process of exchanging information set out in the Directive has the purpose of facilitating the application of prosecution and criminal penalties as regards the persons concerned. The Court ignored the Advocate-General’s point that the Directive draws upon the EU’s ‘Prum’ system for the exchange of information between police authorities.

While it is arguable that the Court was drawing a distinction between the exchange of information and the subsequent criminal process, such a distinction would not be convincing. The two aspects of criminal law are closely linked, and Article 87 TFEU expressly refers to the exchange of information.

In fact, the Court does not seem to draw such a distinction, relying only upon the aim of securing road safety, and the fact that exchange of information (the content of the Directive) supported this aim. This could be understood to mean that even a measure about the mutual recognition of criminal penalties relating to road traffic offences (such as the existing Framework Decision, referred to by the Advocate-General) falls within the scope of EU transport law, at least as far as transport is concerned. Moreover, logically this approach applies by analogy to criminal law measures related to other aspects of EU law, such as the internal market. As the Advocate-General pointed out, the existence of Article 83(2) TFEU, which provides for the power to adopt substantive criminal law relating to other EU policies, proves that ‘the border is not sealed’ between criminal law and the rest of EU law.

The Court’s reliance upon Article 67 TFEU is not convincing either. In fact, that provision is less precise than the legal base of Article 87, referring generally to ‘cooperation and coordination’, and not restricting the scope of the policing and criminal law aspects of the JHA Title expressly to criminal offences.

This brings us to the central flaw of the alternative argument. Both the Advocate-General and the EP stated that Article 87(1) TFEU was not limited in scope to ‘criminal matters’. No, but it is expressly limited in scope to ‘criminal offences’. (The Advocate-General went so far as to quote the wording of Article 87, leaving out these final two words). While some Member States apply criminal law to road traffic offences, others do not. This distinction is surely recognised by Article 67(1) TFEU (not quoted by the CJEU), which states that EU law on JHA matters must respect ‘the different legal systems and traditions of the Member States’.

The Council’s arguments did accept that the EU police cooperation measures had to be linked to criminal law, but asserted that ‘criminal’ law had a wide meaning, and that administrative procedure had to be regarded as criminal procedure. These arguments ignore the diversity of the Member States’ traditions in this field.

What approach should the EU legislature – and the Court – have taken? The Court’s analysis is flawed because it ignores the link between criminal law and road traffic offences in many Member States, while the Council and EP ignored the role which administrative law plays in many others. There is a way in which the EU could have attempted to deal with the issue of road safety, while taking account of the diversity of Member States’ systems. It could have adopted parallel measures relating to the different approaches to this issue, as it did when it adopted a Regulation on the civil law aspects of victim protection orders, following a Directive on the criminal law aspects of this issue.

Finally, as for the UK, its determination to opt out from this measure (which has now been frustrated by the Court) is hard to explain. Officially, at least, the UK opted out of the measure because it would was not consistent with the system applied in the UK (see the government’s explanationto the House of Commons EU Scrutiny committee). But the better course would have been to attempt to negotiate, within the context of the legislation, a different model for the exchange of information which (in accordance with Article 67 TFEU) took account of the specificities of the UK system but which still ensured that the valuable objective of the legislation would be secured in the UK. After all, surely UK citizens also quite rightly feel (in the Advocate-General’s words) ‘the sense of injustice that can arise from the impunity’ of foreign drivers not being penalised for road traffic offences committed in the UK.

One can only hope that the government did not opt out of the proposal purely in order to boast to those who oppose any EU role in criminal law under any circumstances that it had secured yet another opt-out. The safety of British drivers and pedestrians should not be undermined by the political objective of putting another notch in a Eurosceptic bedpost.


Barnard & Peers: chapter 5, chapter 25

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Can Thomas Piketty reform capitalism and democracy in the European Union?

Steve Peers

A few months ago, no one would have predicted that a leftwing French economist would become the intellectual equivalent of a rock star, in particular the UK and the USA. Yet Thomas Piketty has managed this feat with Capital, a tome which suggests a radical new thesis about the link between capitalism and democracy.

Like other rock stars, Piketty cannot resist the call to lend to his name to good causes. But unlike Bono and Cher, his support for a French academic initiative for EU reform, published recently in The Guardian, is still linked back to his day job.

The EU used to be reasonably good at doing capitalism, but not very good at doing democracy; now it is not very good at doing either. So the Piketty thesis suggests a number of major reforms to address both failings.

The Piketty proposals

The first of three proposals is that France and Germany, and then other Eurozone countries ‘share’ (he means ‘harmonise’) their corporate income tax. This would entail a common tax base, a minimum rate of 20%, and a ‘federal’ rate of 10% imposed by a Eurozone authority. This would create a Eurozone capacity as regards investment programmes. There should also be automatic exchange of bank information within the Eurozone, an active policy for more progressive taxation of income and wealth and an ‘active fight’ against tax havens outside the Eurozone.

Secondly, there should be a parliamentary chamber for the Eurozone, made up of members of national parliaments, selected on the basis of political party representation in national parliaments. The numbers of representatives from each state would be (strictly?) proportionate to the population. It would start with those Eurozone members that support ‘great political, fiscal and budgetary union’, but would be open to all EU countries that share this goal. There would be a Eurozone minister of finance, and eventually a Eurozone government, answerable to this chamber.

Piketty and co reject the idea that a second chamber could be made up of heads of state, on the basis that a single individual cannot represent a state. They suggest that the European chamber could address issues such as corporate governance, childcare, training, social legislation and a price for carbon emissions.

Thirdly, there would be a debt redemption fund, paying off all debts over 60%, with the Eurozone parliament deciding on ‘the level of the common deficit’ each year.

As for how to achieve these aims, they assume that a Treaty change would be necessary. They assert that ‘the Treaties are being modified constantly’, such as in 2012. This is an apparent reference to the Treaty amendment relating to the European Stability Mechanism (ESM), the treaty between Eurozone states which created a sort of bail-out fund.

Comments

Assuming, for the purposes of argument, that Piketty’s economic analysis is valid, how feasible are the suggested remedies to address the undoubted challenges to capitalism and democracy within the European Union?

Starting with the reformers’ final point, Treaty reform is much harder than they suggest. While it is true to say that there have been several Treaty amendments in recent years, they were all minor. The four amendments agreed since the Treaty of Lisbon consist of: the single new paragraph of the Treaty relating to the ESM, which the CJEU said was not necessary anyway (Pringle); a Protocol clarifying the position of Ireland; a Protocol concerning the effects of the Charter of Rights on the Czech Republic (dropped when that country withdrew its request for it); and a Protocol on the numbers of MEPs. The latter three amendments were all leftovers from the Treaty of Lisbon, either being promises made to get it ratified (the Irish and Czech Protocols), or a transitional measure to take account of the delay in in its entry into force.

In comparison, a plan to negotiate a more significant Treaty amendment relating to economic governance collapsed in December 2011, when the UK and the other Member States could not agree whether there should be specific safeguards built in for the UK’s financial services industry. The last successful major Treaty amendment, the Treaty of Lisbon, took years to negotiate and ratify (taking into also account the efforts to drawn up and ratify the Constitutional Treaty). Perhaps Piketty and his colleagues were all on sabattical in 2005, when the French public rejected that Treaty in a referendum?

Having said that, a Treaty amendment would not be necessary as regards all of the points which they raise. Given the difficulties in agreeing any significant Treaty amendment, and the time it would take to come into force even if the effort is successful, any advocates for EU reform should consider first what reforms can be agreed within the current EU legal order, including enhanced cooperation, and/or in the form of treaties between a limited number of Member States outside the EU legal order.

As regards Piketty’s first proposal, a harmonised corporate tax base and a minimum rate could be the subject of EU law, by means of enhanced cooperation (which means using EU law to adopt measures for a minimum group of nine Member States, if not all Member States wish to participate). In fact, there is already a proposal to harmonise the corporate tax base under discussion. Alternatively, a treaty between Member States could address this issue, if it complies with other EU measures on corporate tax, as well as the Treaty requirement of non-discrimination between Member States.

However, the EU has limited powers as regards wealth and income taxes. On these issues, though, there could be a treaty among Member States, which would have to be consistent with the EU Treaty rules on non-discrimination.

There are many EU measures on the exchange of tax information an EU issue already, and the idea that a group of Member States fight against tax havens within the EU is hugely problematic due to EU free movement rules. Similarly, negotiations with non-EU tax havens can only be carried out by the EU, because to the extent that the issues concerned (like the exchange of information) have been dealt with by internal EU laws already, the EU has exclusive external competence to negotiate such treaties.

As for a Eurozone budget, it should be possible to arrange for one within or outside the Treaties, in either case without amending them.

On the other hand, Piketty’s third suggestion, the debt redemption fund, really will require Treaty reform, since it is likely to infringe the existing ‘no bail-out rule’ by making some Member States at least partly liable for the debts of other Member States.

This brings us to the institutional arrangements. While a Eurozone parliamentary chamber (and the accompanying government and ministers referred to) could be created in a treaty among Member States, any overlap between the powers of these bodies and the existing EU institutions is legally problematic, since the CJEU ruled in Pringle that treaties between Member States were also subject to the rules on the EU’s exclusive external competence. Clearly the proposals of Piketty, et al, would in part create such an overlap, since the Eurozone parliament and government would address issues such as carbon pricing and social legislation. Moreover, any powers concerning a debt redemption fund would entail an underlying Treaty amendment in the first place.

It is also unhelpful that the reform proposals ignore the very existence of the Council – the EU body which is made up of ministers from Member States (as distinct from the European Council, made up of heads of state), and which legally speaking does constitute an existing second legislative chamber (alongside the European Parliament) in the EU.

Certainly, the substance of any reform initiative could be more easily taken forward by means of reforming existing bodies, rather than creating new ones. It might be fairly quick and simple to agree on the creation of a Eurozone-only element of the European Parliament (if MEPs from non-Eurozone states agree to abstain, or if a treaty between Member States creates such a formation and gives it powers distinct from the normal powers of the European Parliament).

The one strong argument for creating a new Eurozone chamber is that such a radical step may be the only way politically to address widespread concern about the legitimacy and democracy of the EU, in particular as a response to the result of the upcoming EP elections. The particular make-up of that parliament being proposed would also address the concerns of the German Federal Constitutional Court about the current make-up of the European Parliament (ie the degressive proportionality that gives smaller Member States more MEPs per person). Again, though, the only safe way to create such a chamber legally is to ensure that its powers are clearly distinct from those of the EU institutions, for instance focussing at first on the harmonisation of taxes which the EU has not addressed, as well as supervision of the functioning of the ESM (which is mainly the subject of an international treaty).

One final consequential suggestion (although it would entail a Treaty amendment). The creation of a Eurozone parliamentary chamber would be bound to lead to disputes over exactly where to locate it. The obvious answer is Strasbourg – in return for the European Parliament finally being liberated from holding most of its plenary meetings there, and moving fully to Brussels. Surprisingly, these French reformers do not raise this issue.

Barnard & Peers: chapter 2, chapter 3, chapter 19

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When can European States ban secondary strikes? Comments on the RMT judgment

By Niko Tatulashvili

In its judgment delivered on 8 April 2014, the European Court of Human Rights had to decide whether the strict requirements of UK law regarding strike action was consistent with the requirements of Article 11 ECHR, concerning the freedom of association. The application was lodged by a London based trade union, the National Union of Rail, Maritime and Transport Workers (RMT) uniting employees from different sectors of transport industry in the UK. 

The applicant complained about two separate cases, one concerned with the statutory requirement of a strike ballot notice and the other with a complete ban on secondary strike action.

The first case was declared inadmissible by the European Court. The judges stated that even though the requirement of the national law (the Trade Union and Labor Relations (Consolidation) Act 1992) to hold a primary ballot before strike action (Section 226(1)) and communicate the results to the employer, specifying the categories of the workers concerned (Section 226(A)) caused some delays, in the end the trade union in this specific case still succeeded and managed to improve the working conditions of the workers concerned.

In the second case the applicant was a representative of a very small number of employees in a particular workplace, so organizing a strike action would not have any disruptive effect on the work and eventually would not lead to any results. According to the applicant it could better protect the interests of its members if it was allowed to organize a secondary strike action in support of the workers concerned. Secondary action is expressly excluded from the statutory protection by Section 224 of the Trade Union and Labor Relations (Consolidation) Act 1992. The Court declared the second part of the case admissible.

Major Arguments of the Parties

The union’s main argument was that if it could organize a sympathy strike, the working conditions of the workers concerned would not have deteriorated; and that the ban on such action seriously limited its ability to protect its members. In support of its application, the RMT cited the comments of International Labour Organisation (ILO) supervisory bodies and the European Committee on Social Rights (ECSR), the body monitoring the application of the Council of Europe Social Charter, condemning the blanket ban on secondary industrial action by the UK.

The third parties (ETUC/TUC, Liberty) submitted their views in support of the applicant. They emphasized the need for better protection of workers’ rights in the current situation when it’s easy for employers to undermine union action by complex corporate structures, by transferring work or by hiving off companies. The fragmentation of traditional labour market (when all members of the same workforce had the same employer) makes it difficult for trade unions to protect the interests of their members. In this difficult fight secondary action is a necessary tool for trade unions.

For its part, the UK government argued that the ban on secondary strikes was a response to widespread disruptions caused to the British economy by widespread secondary action in the 1970s and 1980s. According to the government, a dispute in one part of the economy has a potential to rapidly spill over into others, affecting third parties who have no stake in the conflict and no means to resolve it.

The judgment of the Court

For the first time in its jurisprudence the Court recognized that the secondary strike action is a right protected under Article 11(1) ECHR. It also referred to Article 31 (3) (c) of the Vienna Convention on the Law of Treaties and also its own judgment in Demir and Baykara, where it had acknowledged the importance of established international norms in the process of interpreting Convention rights.

After establishing that secondary strike action is protected by the Convention, the Court went on to decide if the interference with the secondary strike pursued one of the legitimate aims justifying limitation of the freedom of association, as enumerated in Article 11(2). Here the Court accepted the argument of the UK government and stated that unlike primary action secondary action has a potential to impinge upon the rights of persons not party to the industrial dispute, cause broad disruption with the economy and affect delivery of services to the public. Therefore, by enacting the law banning the secondary strike the UK Parliament pursued the legitimate aim of protecting “the rights and freedoms of others” mentioned in Article 11(2).

Here the Court offers one more novelty, it distinguishes between primary and secondary strikes and states that in case of primary strikes the term “the rights and freedom of others” refers only to the employer’s interests, while in case of secondary strikes the same term is not limited to the employer only, but refers to the broader interests of the public.

Next, the Court assessed whether the interference with freedom of association was “necessary in a democratic society”. The scope of margin of appreciation of the States in the present case was one of the important aspects that the Court had to deal before deciding whether the interference with the Convention right was corresponding to a “pressing social need” and therefore was “necessary in a democratic society” or not.

The position of the applicant was that margin of appreciation of the UK government in this case must be limited as it was in the case of Demir and Baykara. The Court stated that in order to decide on margin of appreciation of the state the particular facts of the case should be taken into account. In the case of Demir and Baykara the interference with the freedom of association (dissolution of a trade union) was far-reaching, intruding its inner core. According to the Court, when the interference affects the core of the trade union activity the margin of appreciation of the States is narrow. But conversely, the State has a wide margin of appreciation where secondary or accessory aspects of the trade union activity are affected.

In this case the Court considered that the core elements of the freedom of association (which according to the Court can be a primary strike action) were not at stake and therefore state has a wide margin of appreciation. In the opinion of the Court, where the subject matter of the case is related to the social and economic strategy of the respondent state, the wide margin of appreciation should be allowed, as national authorities, and especially a democratically elected Parliament, are in a better position than an international judge to know what is the public interest on social and economic grounds. 

The Court also considered the common European practice in relation to secondary strikes. According to the Court the UK with its outright ban on secondary action stands at one end of a comparative spectrum, however, it does not mean that domestic authorities have stepped outside their margin of appreciation.

The Court took note of the applicant’s argument that the ECSR and ILO bodies regularly criticize the UK government for its current ban on secondary strike action. The Court referred again to the Demir and Baykara case, where it had confirmed that an international consensus emerged from specialized international instruments may constitute a relevant consideration for the Court when it interprets the Convention. However, considering the circumstances of the present case the Court explained that: “… the negative assessments made by the relevant monitoring bodies of the ILO and European Social Charter are not of such persuasive weight for determining whether the operation of the statutory ban on secondary strikes in circumstances such as those complained of in the present case remained with the range of permissible options open to the national authorities under Article 11 of the Convention.”

Based on these arguments the Court concluded that the restriction on the right to secondary strike served a pressing social need and was necessary in a democratic society. Therefore, there was no violation of Article 11(1).

EU Law

The EU law aspects of this case were not considered by the Court, even though the applicant referred to the EU Charter of Fundamental Rights and Freedoms which guarantees a right to strike in case of conflict of interests between parties (Article 28). One reason for that might be the fact that Article 28 appears in Title IV of the Charter. According to Protocol 30 to the Treaty on the Functioning of the European Union rights mentioned in Chapter IV of the Charter does not create justiciable rights for the UK, unless they are recognized on national level (Article 1(2)).

However, the EU law issues were discussed in the Concurring Opinion of Judge Wojtyczek. The judge made a reference to Article 51 of the Charter which describes the field of application thereof. According to the Article provisions of the Charter should be respected by EU Member States only when they are implementing EU law. The Charter does not create new powers for the EU, other than established by the Treaties. The judge continued by mentioning Article 153(5) TFEU which excludes the right to strike from the scope of the powers of the Union.

However, the judge accepted that EU institutions and namely the Court of Justice of the EU (CJEU) have had to decide on the issues of the right to strike. In this regard the judge mentioned the famous cases of the European Court of Justice (Viking Line and Laval), in which the CJEU justified the restriction of the right to strike when it collided with the fundamental EU freedoms of movement. The judge concluded that while the EU should not violate the right to strike as guaranteed by the Charter, this instrument does not entitle the EU to prevent its member states from imposing restrictions on the right to strike.

Comments

The EU law analysis offered by Judge Wojtyczek was very brief and did not shed much light on the issue. In literally two paragraphs the judge tried to explain that the restrictions on the right to strike are justified by EU law and that Member States cannot be prevented from imposing such restrictions. The interesting point here is that nobody disagrees that right to industrial action is not an absolute right. The questions which are important and which the judge did not mention here are: (a) what kind of restriction is permissible, and (b) what is the margin of appreciation of states in this regard? 

Several other important aspects were omitted from the analysis of the concurring Judge. Speaking about the scope of application of the Charter the Judge did not consider the Article 52(3) of the same Charter which provides that, “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.” The important role of the ECHR in establishing the standards for the human rights protection in the region is reaffirmed by the recent Draft Agreement on the Accession of the EU to the ECHR 2013. According to this agreement in case of incompatibility the EU should make its regulations on human rights protection compatible with the Convention.

Speaking of the Viking Line case the judge did not mention that the CJEU in this case explicitly recognized the right to strike “as a fundamental right which forms an integral part of the general principles of Community Law”. This guarantees the right to strike a considerable level of protection in the EU law and raises the possibility that in a future judgment of the CJEU, this right might prevail over the EU’s fundamental market freedoms.

As for the main judgment, several points should be emphasized. It is important that for the first time in its jurisprudence the ECHR recognized that secondary industrial action fell within the scope of Article 11. This recognition of secondary strike action seems logical as the Court continued the trend (started in 2008 by the Grand Chamber in Demir and Baykara) and shared the practice of the ILO and ECSR, which recognize such a right.

However, when it came to the restrictions upon this right, the Court gave the UK government a wide margin of appreciation. This time, the Court disregarded the position of the ILO and ECSR and supported a total ban on secondary strikes by the UK government. The rhetorical question here is: what sense does it make to recognize the right and then allow the states to put a blanket ban on it?

Also, this selective approach of the Court – accepting some aspects of the soft law instruments and disregarding the others – creates a lack of certainty. It is not clear now what role soft law instruments (ILO, European Social Charter) play in the interpretation of the Convention.

It is also notable that in this judgment, primary strike action was explicitly recognized by the Court as a core element of freedom of association. Although the restriction upon the secondary strike action was justified because it was not a core but secondary or accessory aspect of the trade union activity, it follows logically that in the case of primary strike action states should enjoy a very narrow margin of appreciation because such action is a core element of freedom of association.

There is also an important proportionality issue aspect in this judgment. I share the argument of the UK government and the Court that secondary strike actions have a potential to seriously harm the economic situation in the country and cause disruption in the work of others, not related to the industrial dispute. The argument that economic and social issues are better known to the government than the international judge also makes sense. Furthermore, the Court is mainly concerned with civil and political rights. However, I still think that the Court should have used a case-by-case approach (which it mentions several times in the judgment) in relation to secondary strikes, instead of supporting a total ban upon it. It could have allowed the UK government to strictly regulate such actions, at the same time giving trade unions a chance (at least theoretical) to claim such a right in other cases. Such a decision would have been easier to reconcile with the soft law instruments the Court embraced in its previous case law.

In conclusion, the position of the Strasbourg Court in this case reminds me the Viking Line judgment: in both cases right to strike was recognized (in Viking Line – primary strike, in RMT – secondary strike) and in both cases restrictions upon this right were justified and the soft law instruments disregarded. This might be a pure coincidence which has nothing to do with the statistics but it is still noteworthy to mention that when it comes to protection of secondary strikes the ECtHR now has more in common with the infamous CJEU rulings than its own previous case law.


Barnard & Peers: chapter 9, chapter 20

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When can irregular migrants be detained in prisons?

Steve Peers

Yesterday’s Opinion, for the Court of Justice of the European Union (CJEU) by Advocate-General Bot, addresses an important legal question: when can irregular migrants be detained in ordinary prisons (as distinct from specialised detention centres for migrants) pending their expulsion?

This issue is addressed by the EU’s Returns Directive, which (among other things) sets out rules on the grounds for detention and detention conditions of irregular migrants pending expulsion. Most of the CJEU case law on this Directive to date has concerned the grounds for detention; yesterday’s Opinion (covering three different cases) was the first time that the Court has been asked to rule on aspects of detention conditions.

Conditions of detention in the Returns Directive

The main topic of yesterday’s opinion was Article 16(1) of the Returns Directive, which states that ‘Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners’.

The remainder of Article 16 sets out rules concerning communication with the outside world, vulnerable persons, treatment of illness, the role of NGOs and the supply of information to detainees. Article 17 contains special rules for detention of minors and families.

However, Article 18 of the Returns Directive allows Member States to derogate from Article 16(1), as well as two other rules on detention (concerning the timing of judicial review and the obligation to provide separate accommodation for detained families pending removal). This derogation can apply where there is ‘an exceptionally large number of third-country nationals to be returned’ which ‘places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or its administrative or judicial staff’. However, Germany (the Member State concerned by yesterday’s opinion) apparently did not claim that this derogation was applicable.

The Opinion

Two of the three cases (Bero and Bouzalmate) raised the same question: can a federal State argue that it is justified to keep immigration detainees in prisons on the basis that some of its constituent states do not have immigration detention facilities at all? The third case (Pham) raised the question of whether a detainee could consent to being held in a prison instead of a detention facility.

The answer to the first question turned in part on differences in the wording of the Directive between the various versions in the official languages of the EU. In the English version, Member States can detain irregular migrants in prisons if they ‘cannot’ detain them in specialised facilities. According to the Opinion, all other language versions suggest the same meaning – apart from the German version. Instead, the German version allows Member States to detain irregular migrants in prisons if they ‘do not have’ specialised facilities (my translation of the French language version of the opinion).

In the Advocate-General’s view, the version in the majority of language versions had to be preferred. Since specialised detention facilities were the rule, and detention in prisons was the exception, it would not be acceptable to allow (parts of) Member States to avoid applying the normal rule simply because they did not have immigration detention facilities. Implicitly, they simply have to build them.

He rejects a number of arguments to the contrary suggested by Germany and the Netherlands. In his view, Article 18 (which, as we have seen, allows for a derogation from Article 16(1) where there is an exceptionally large number of people to be returned) is the only possibility for an exception from Article 16(1). Surely this is correct, since if the drafters of the Directive had wanted to provide for further possible exceptions, they would have done so expressly, given the importance of the general rule that migrants should be detained separately from ordinary prisoners.

Also, he is not convinced by the argument that the federal structure of Germany (and, by analogy, other federal states such as Austria) justifies such a result. While the national identity of Member States, protected by Article 4(2) of the TEU, protects their federal nature, it does not exempt them from complying with their EU law obligations, but only leaves it to them to make arrangements within the framework of their national constitutional order to ensure that their EU obligations are complied with. In any event, German law in fact allows the different Lander to cooperate as regards immigration detention spaces. This approach has to be correct: Article 4(2) should be seen as a safeguard against the EU trying to alter the constitutional foundations of each Member State, not as a carte blanche allowing Member States to justify non-compliance with EU law.

He also rejects the astounding argument that prison accommodation is a ‘more favourable’ rule for immigration detainees than specialised facilities (the Returns Directive allows Member States to apply such more favourable rules as regards any of its provisions). Germany and the Netherlands argued that prison detention benefited irregular migrants because it meant that they were closer to friends and family, and could enjoy some of the extra facilities available in prisons. But the Advocate-General, quite rightly, cannot accept that detaining migrants in a prison, as if they were convicted criminals (or criminal suspects subjected to pre-trial detention) could be considered ‘more favourable’ for them.

Next, he rejects arguments based on cost and overcrowding. After all, as he points out, holding immigration detainees in prisons will also lead to overcrowding, and refurbishing prisons so as to provide for strict separation of ordinary prisoners and immigration detainees entails costs too.

Finally, in the other case (Pham), the Advocate-General rejects the possibility that detainees could consent to waive their rights to be held separately from ordinary prisoners. From a literal perspective, the Returns Directive does not provide for a waiver and given the importance of the rule of detaining migrants separately from ordinary prisoners, such an exception cannot be inferred. The Advocate-General also rightly lays stress on the lack of power of detainees as compared to the immigration and prison authorities. Simply put (borrowing from Noam Chomsky), it is easy in such cases to manufacture consent.

It might also be added that where EU legislators want to provide for the possibility of waiving rights, they usually provide for this expressly. A well-known example is the possibility of employees to agree to work more than 48 hours a week, provided for in the EU’s Working Time Directive. Another example, thematically closer to the issue in the Pham case, is the possibility of criminal suspects to waive some of the rights set out in recent EU legislation. Strikingly, in both these cases, there are detailed safeguards in the legislation aiming to ensure that the rights can only be waived freely and with knowledge of the consequences. If the EU legislature had wanted to allow any of the rights in the Returns Directive to be waived, they would surely have provided for such safeguards here too.

Again, the Advocate-General rejects the argument that the possibility of waiving his rights was a ‘more favourable rule’ for Mr. Pham. Member States had argued that he could spend more time with people from his own age and nationality – even though all the persons concerned were convicted criminals or criminal suspects.

Consequences of the judgment

Assuming that the CJEU follows this opinion in its judgment, what will be the consequences? First of all, what are the consequences for national administrations? It should be noted that according to the Commission’s recent report on the implementation of the Directive, Article 16(1) is being breached in nine Member States.

Member States might be tempted to imagine that they can get around the Court’s judgment by criminalising more breaches of immigration law, and/or providing for longer sentences for immigration offences and using such laws more frequently in practice. So then they could say that the migrants are in fact ordinary prisoners and could not benefit from this judgment. However, the CJEU has already ruled several times (see for example the El Dridi judgment) that the imposition of custodial sentences for immigration offences is in principle problematic, since it delays and complicates the expulsion of the person concerned – which is the main point of the Directive.

Alternatively, Member States might be attracted to use the exception from the rules provided for in Article 18. To do so they will have to show that there are ‘exceptionally large’ numbers posing an ‘unforeseeable’ burden. The Opinion suggests that this exception might be applicable in the Member States dealing with migrants crossing the Mediterranean. But the numbers entering the EU via this route have sometimes gone down as well as up, and it may be questioned whether the numbers concerned can actually be regarded as ‘unforeseeable’.

Another way to reduce the numbers being detained is to stop the migrants reaching the EU Member States’ territory in the first place – although this is easier said than done.

The simplest way to reduce the numbers of irregular migrants being detained, and to avoid the attendant costs of building detention centres, is of course not to detain so many irregular migrants in the first place.

Secondly, as for the consequences for migrants, the CJEU has ruled in the G and R judgment that there is no obligation to release migrants from detention, just because there has been a breach of their right to be heard, unless it can be shown that such a breach affected their defence. But surely these cases are distinguishable, because the breach of the legislation concerns whether migrants should be detained in prisons in the first place. So unless: (a) immigration detainees can indeed be separated from ordinary prisoners, assuming that the Member State can show that it ‘cannot’ detain them in separate facilities; or (b) the Member State can show that the Article 18 derogation can be validly invoked, such detainees have to be released from prisons, and not detained there in the first place.

Finally, as regards the consequence for asylum-seekers, the second-phase reception conditions directive includes an essentially identical rule (Article 10(1) of that Directive) as regards their detention in prisons. In the absence of any reason to interpret the rules in that Directive differently, it must follow that the judgment in these cases will be applicable also to asylum-seekers’ detention, following the deadline to apply that Directive in July 2015.

Conclusions

The suggestion that detaining migrants in prisons constitutes ‘more favourable conditions’ for them as compared to specialised detention centres would be comic, if it were not for the seriousness of the consequences for the persons concerned – as evidenced by Mr. Bouzalmate’s suicide attempt.

Taken as a whole, the Advocate-General’s opinion neatly brings together excellent arguments about the literal interpretation of the Directive with an appreciation of what a humane interpretation of the Directive would suggest. Although Advocate-General Bot has a reputation for taking a strict view in cases involving convicted criminals, his Opinion in this case shows that he has a very clear understanding of the importance of the difference between convicted criminals and migrants who have committed no crime (leaving aside immigration offences). His analysis certainly ought to be followed by the CJEU.


 Barnard & Peers: chapter 26

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