The CJEU transforms family reunion for Turkish citizens

Steve Peers

In this week’s judgment in Dogan, the Court of Justice in effect established a new set of rules for family reunion for most Turkish citizens living in the EU – although those rules will still differ in each Member State.

The case concerned Mrs. Dogan’s application to come to Germany to live with her husband, after spending thirteen (by now sixteen) years apart. She was refused on the grounds that her German language skills were not satisfactory, for even though she passed the relevant language test, her written German was not satisfactory due to illiteracy.

This raised two legal issues. First of all, since her husband ran a business in Germany, did the national rule breach the 1970 Protocol to the EU/Turkey association agreement, which prohibits new restrictions on establishment or the provision of services? Secondly, did the national rules comply with the EU’s family reunion Directive, which permits Member States to require family members to comply with ‘integration measures’?

The Court of Justice decided to answer only the first question. This means that its ruling is only relevant to Turkish nationals, rather than all third-country nationals. Having said that, Turkish nationals make up a large proportion of all third-country nationals in the EU, and the Court’s judgment on this point applies to all Member States, including the UK, Ireland and Denmark, which do not apply the family reunion Directive.

However, it should be noted that the Advocate-General’s opinion also argued that the integration requirement breached the family reunion Directive (see discussion here), and that there is another case before the CJEU which raises this issue (notably the K and A case; see further the Commission's recent guidance on the Directive, discussed here).

The judgment

Previously, the CJEU had held that the standstill on new restrictions on establishment and provision of services was binding, had direct effect, and prevented any new measures making it more difficult to exercise self-employment or provide services. But the previous case law only concerned those persons who were actually self-employed or providing services. Could it extend also to the rules regulating the family members of such persons?

The CJEU said it could. In the Court’s view, where the national law made family reunion ‘difficult or impossible’, the establishment of a self-employed person could be ‘negatively affected, since that person would ‘find himself [or herself] obliged to choose between his [or her] activity in the Member State concerned and his [or her] family life in Turkey’. In this case, the national rule made family reunion more difficult, and so violated the standstill clause.

Finally, the Court noted that a measure infringing the standstill clause could be permissible, if it could be ‘justified by an overriding reason in the public interest’, and was ‘suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it’. In this case, assuming that the objectives of the national law (preventing forced marriages and promoting integration) were overriding reasons in the public interest, the national law failed the proportionality test, since the refusal of an application on linguistic grounds was automatic, without taking account ‘of the specific circumstances of each case’.

Comments

In order to assess the impact of the Court’s ruling, it is necessary first of all to determine its scope. The geographical scope, as noted already, is all Member States. Also, while the family members of Turkish nationals will usually reside in Turkey, the judgment should logically apply also if those family members reside in another third State, or in a Member State. Although in the latter case, it is possible that EU immigration law, such as the long-term residents’ Directive, might also apply, that legislation is without prejudice to more favourable rules in treaties between the EU and third States.

The temporal scope, as established in the previous Dereci case, is 1973 for the first nine Member States (the date of entry into force of the 1970 Protocol to the association agreement), and the date of joining the EU for all other Member States. That means that the national law in force on that date regarding family reunion cannot be made worse for those joining Turkish nationals. Moreover, as established in Toprak and Oguz, if the national law is made more liberalafter that date, the standstill also prevents any reversion to the more restrictive law.

Next, what is the personal scope of the judgment? There are three facets to this issue: the sponsor (ie the Turkish citizen in the EU); the family members who seek to join them; and issues of nationality law.

For the Turkish citizen in the EU, the standstill which the Court discussed here also applies to providers of services, but not (as the Court established in Demirkan) to recipients of services. There is also a parallel standstill relating to Turkish workers: according to Article 13 of Decision 1/80 of the EU/Turkey Association Council, the rules on access to employment of Turkish workers and their family members cannot be made more restrictive either. The case law on this provision (see most recently the Demir judgment) makes clear that the standstill on workers and the standstill on establishment must be interpreted the same way (although for the first nine Member States, the standstill on workers took effect in 1980, rather than 1973). In particular, the standstill on workers applies to measures concerning their first admission. It must logically also apply to rules on the first admission of the worker’s family members, since workers, like self-employed persons, would otherwise face a choice between carrying on with employment in a Member State and enjoying family life in another country.

As for family members, while this case concerned spouses, it would logically apply to any other family member as well (Mrs. Dogan had also originally applied for two of the couple’s four children to be admitted also). Simply put, the Turkish citizen in the EU could equally face a choice between his or her economic activity and family life with unmarried partners, children, parents or other family members as well.

Next, as for issues of nationality, one question is whether the primary right-holder and/or the family members concerned can still rely on the rule, if they are dual citizens of Turkey and another country. This question appeared to be answered by the CJEU in Kahveci and Inan, in which it ruled that dual citizens of Turkey and a Member State can rely on the EU/Turkey association rules. But in the pending case of Demirci, concerning social security, an Advocate-General has recently argued that dual citizens cannot invoke the rules. The CJEU will likely clarify this issue soon.

Another nationality-related question is whether third-country national family members of Turkish nationals (in this context, meaning family members who are not nationals of Turkey or a Member State) are covered by the standstill rules. It is clear that they are, by analogy with the recent judgment in Dulger.

Next, what is the material scope of the judgment? In other words, what type of rules relating to family reunion are covered? The test is whether the national rule makes family reunion difficult or impossible. This is apt to cover waiting periods, in-country applications, income requirements, fees for applications (see the Sahin judgment), age limits for spouses or children, and accommodation or sickness insurance rules. Furthermore, the standstill should equally apply as regards different categories of sponsors: for instance, more favourable rules that apply to groups such as refugees, long-term residents or highly-skilled workers cannot be made more restrictive either.  

Finally, what about the possibility of justification? The CJEU did not rule directly in this case as to whether prevention of forced marriages and integration were possible grounds of justification, although in Demir it ruled that prevention of irregular immigration could be such a ground. An example of a new rule which could surely be justified would be a ban on admission of family members if they have received a five-year prison sentence, as compared to a ten-year threshold previously. On the other hand, it seems doubtful that a national rule which simply aims to reduce the numbers of Turkish persons’ family members entering the country can be justified, in light of the overall objective of the association agreement of eventually providing for free movement of people and preparing for Turkish accession.

In any event, it is clear from the Dogan judgment that even if a new national restriction is justified, refusals cannot be automatic and must take account of individual cases. The requirement that the restrictions be ‘suitable’ also suggests that they must be the only possible means to achieve their end. More generally, it is surely the case that like any derogation from EU law, such restrictions and their application must also be judged in light of the EU Charter, namely the right to family life and rights of the child. 

Barnard & Peers: chapter 24, chapter 26

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Big Brother’s Little Brother? The scope of the ‘household exception’ to EU data protection law

Professor Lorna Woods, co-author Steiner and Woods EU Law

Introduction

In the case of Ryneš, the Czech Supreme Administrative Court, Nejvyšší správní soud, referred a question on the meaning of the ‘household activity’ exception under the EU Data Protection Directive to the Court of Justice.  Central to the question was the fact that the processing was by a CCTV camera which was not restricted to the CCTV operator’s own house but covered also the public footpath outside it and the house opposite, when the ‘household exception’ refers to data processed ‘exclusively’ for personal and household purposes.  This is an area in which member States’ practices diverge.  With the exception of Lindqvist, the Court has not dealt with the conditions of applicability for the household exception.  Since then, the EU Charter of Fundamental Rights – which recognises not only the right to private life but also the right to data protection – has acquired legal force by virtue of the Treaty of Lisbon. The Opinion of the Advocate General was handed down today, later than originally scheduled.

Facts

The case arose from the fact that Mr Ryneš installed a CCTV camera on the corner of his house which overlooked not only his front door, but also the public footpath and the opposite house.  His aim was to protect his family and his property, as there had been some previous vandalism to his property.  Shortly after the installation of the CCTV system, the windows of the house were broken once again.  The CCTV footage was used to identify two individuals, one of whom questioned whether the use of the CCTV system was permissible under the Czech data protection law (implementing the directive). 

Question Referred

Mr Ryneš argued that the so-called ‘household exception’ in Article 3(2) of the Data Protection Directive applied.  It states:

2. This Directive shall not apply to the processing of personal data:
- in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law,
- by a natural person in the course of a purely personal or household activity.

The Court referred the following question:-

Can the operation of a camera system installed on a family home for the purposes of the protection of the property, health and life of the owners of the home be classified as the processing of personal data ‘by a natural person in the course of a purely personal or household activity’ within the meaning of Article 3(2) of Directive 95/46/EC, even though such a system monitors also a public space?

Opinion of the Advocate General

The Advocate-General made a number of preliminary points, notably that the answer to the question did not depend on whether the data was stored or erased, or whether the data was used or not used.  What seemed central was the existence of surveillance via the CCTV system. The Advocate General noted this case concerned a fixed CCTV system, where the surveillance was constant. The Advocate General commented that he did not intend to go into the area of devices of a different character, such as mobile phones (AG[30]).

The Advocate-General also emphasised that the Charter applied and that the scope of the directive itself – or limitations on its field of application - should be determined in the light of the right to private life and in this the Advocate-General referred back to principles highlighted in Google Spain; specifically the need to ensure the effectiveness of the directive, stating that the approach in Google Spain (para 69) did not just apply in regards to public authorities but in the context of horizontal relations also (AG [28]), subsequently returning to the need to provide a high level of protection a little later in the opinion (AG [39],citing Digital Rights Ireland, the judgment on the invalidity of the data retention Directive).  

The Advocate-General distinguished between the activities of the police (which fall under the first indent in Article 3(2)) and those of Mr Ryneš.  He was not acting as a member of the police force but as a victim even though he did give the images to the police; the exception for policing therefore did not apply to him. The Advocate-General argued that the scope of the directive should not be determined by the subjective views of interested parties but by objective factors and, as with all exceptions and limitations, should be interpreted narrowly - as illustrated by cases such as Satamediaand Lindqvist.  

Returning to Lindqvist, in which AG Tizzano had given the example of correspondence and address book of personal activity, the Advocate General here suggested that the exception should be limited to those activities which are manifestly private and confidential. In the view of AG Jääskinen, this means activities which are closely and objectively connected to an individual’s private life and do not significantly touch on the private life of others. Family life has a distinct link with the domestic environment, though is not limited to the family home but could include a hotel room or a family car (AG [51]). This is more or less the same ground as protected by Art. 7 of the EUCFR.  For the household exception to apply, whether in respect of private life or family life, there is the additional condition of exclusivity. The Advocate General concluded that the video surveillance of others could not be considered exclusively ‘personal’, though it could in principle fall within the scope of domestic activity. Crucially, however, the extension of the surveillance to public space cannot be considered exclusively domestic because of the impact on others, who may wish to preserve their anonymity.  The underlying concern is the impact of living one’s life under a constant state of surveillance, as noted in Digital Rights Ireland (AG [56]).

The Advocate General concluded that the household exception could not be relied on.

Comment

This seems to be another in the recent trend of cases where the Court – or its Advocates General – has interpreted the Data Protection Directive so as to extend or support protection for the data subject.  This can be seen by the attention paid to the recent cases of Google Spain and the repeated references to Digital Rights Ireland.  While there was some reference to Lindqvist when determining the detail of Article 3(2), it played little role in informing the general direction of approach.  While Satamedia allowed a broad approach to the ‘journalistic exception’ in Article 9 of the Directive, which can be contrasted with the narrow approach here, the exception was of a different type – here the effect of Article 3(2) is to take the data outside the field of the directive altogether. Further, Article 9 brings into play the countervailing interest in freedom of expression. No such interest comes into play to extend private life, or to equate vigilantism with police forces (see also Lindqvist on this).

 

A particular theme is that of the impact of constant surveillance on individuals and on society, again following on from recent cases.  In this the EU judiciary seems in line with ECHR case law. Though the Advocate-General discounted Peck (which concerned re-use of security footage from a local council), there is an existing line of law on state surveillance: for example Liberty v. UK and the pending case of Big Brother Watch v. UK(though admittedly there have been critics about the level of consistency of protection – see e.g. Uzun v. Germany concerning GPS tracking).  The Advocate-General specifically excluded the possibility of discussing other surveillance devices such as mobile phones on the basis that they have different characteristics. This seems like an attempt to sidestep controversy as, from the reasoning, the same issues about surveillance and the impact on individuals could arise.  Admittedly, mobile phones tend towards individual instances of use, which may be more likely to fall within one limb or other of the household exception. 

There are new devices, such as Google Glass, which allow for continuous monitoring (until the battery needs recharging at approx. 45 minutes according to Google), without it being clear whether or not such monitoring is taking place.  This is a significant difference from use of a mobile phone for filming, despite Google’s suggestions that Google Glass is no different from a mobile phone (which could in any event fall outside the household exception itself).  If the Court follows the Advocate General, this adds a gloss to the advice given by the UK Information Commissioner (ICO) after Google glass went on sale here. The ICO blog contains the following statement:

If you are using a wearable technology for your own use then you are unlikely to be breaching the Act. This is because the Act includes an exemption for the collection of personal information for domestic purposes. But if you were to one day decide that you’d like to start using this information for other purposes outside of your personal use, for example to support a local campaign or to start a business, then this exemption would no longer apply.

This is not the case for organisations, whose use of wearable technology to process personal information will almost always be covered the Act….

The way this advice is phrased, it is capable of being read as suggesting that ‘personal use’ is non-business use, whereas on the view of the Advocate-General it seems likely to be narrower than that and therefore could trigger data protection procedures.  Data Protection Commissioners have raised concerns about Google Glass and compliance with local laws. Perhaps the ECJ will have more luck in attracting Google’s attention – though the real burden and risk of penalties would seem to fall on users.

Barnard & Peers: chapter 9

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Does the UK’s new data retention bill violate the EU Charter of Fundamental Rights?

Steve Peers

Following the judgment of the Court of Justice of the European Union (CJEU) from April this year, invalidating the EU’s data retention directive, several Member States’ courts have declared their national law invalid. However, the UK government is going in the other direction, tabling emergency legislation today in order to retain data retention powers for the UK.  

Does this proposed law fall within the scope of EU law? If so, does it violate the EU Charter of Fundamental Rights? A previous post on this blog assessed generally the question of how the judgment applies to national data retention laws, and this post applies that analysis to the specific case of the new UK bill.

First of all, according to Article 51 of the Charter as interpreted by the CJEU, there must be a link between the national law and EU law. In this case, the link is Article 15(1) of the EU’s e-privacy Directive, which specifies that Member States may restrict the rights in that Directive relating to the confidentiality of communications, location and other traffic data and caller identification:

'when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.'

The CJEU has recently confirmed that the EU Charter applies to derogations from EU law. More specifically, the CJEU has ruled repeatedly on the application of the Charter to cases where copyright holders have invoked this clause of the e-privacy Directive to justify planned restrictions upon Internet use (see most recently the Telekabel Wien judgment). So logically there is equally a link between EU law and the invocation of this clause for other purposes, most obviously in the criminal law context.

Does the proposed Bill constitute an invocation of this clause in the e-privacy Directive?  Not explicitly. But there is no legal requirement that such an express link has to be made in the national legislation concerned.

So let’s look at the wording of the Bill. Clause 1 allows the government to draw up a statutory instrument that can require ‘a public telecommunications operator to retain relevant communications data’. Clause 2(1) defines a ‘public telecommunications operator’ as ‘a person who (a) controls or provides a public telecommunication system, or (b) provides a public telecommunications service’. The Directive applies to (similarly defined) providers of a ‘public communications network’ or ‘electronic communications services’. The data being retained would be ‘traffic data’ as defined by earlier UK law, whereas the rule in the e-privacy directive also applies to traffic data. The purposes for which the data would be retained in part match those referred to in the Directive, most obviously as regards national security, crime, disorder and public safety.

So to the extent that there is a correspondence between the data being retained, the body retaining it, and the purposes for retaining it, the UK Bill will, if enacted, be linked to EU law, and therefore the EU Charter of Fundamental Rights. There will clearly be such a correspondence in many cases.

The second question is whether the new UK law would violate the Charter. To a large extent, it will be difficult to be certain on this point until the statutory instrument is proposed and adopted, since the Bill would only confer broad powers to act on the government. But Clause 1(2) of the Bill does provide that the telecoms companies might be required to collect ‘all’ data as defined by the future Act.

If that means that untargeted data might be collected, that brings us to the question of what the EU’s data retention judgment actually means. Does it ban mass surveillance in general, or simply require that such surveillance be subject to safeguards? If the latter, narrower meaning is correct, such safeguards could be provided for either in this Bill and/or in the statutory instrument.

According to the CJEU, the safeguards missing from the data retention directive were: a definition of ‘serious crime’; the purpose of subsequent access to the data; limits on the number of persons who could access the data; control of access to the data by means of a court or other independent administrative authority; stronger rules on the data retention period, for instance as regards the categories of data to be retained for the whole period, as well as the protection of the data from unlawful access and use; rules on an obligation to destroy the data; and an obligation to retain the data within the EU only.

Clause 1(4) of the Bill sets out a non-exhaustive list of certain safeguards which the government could include in a statutory instrument. This list partly, but not wholly, corresponds to the list of safeguards referred to in the CJEU judgment. In order to satisfy the CJEU, the subsequent act will have to include all of the relevant safeguards to a satisfactory standard.

But even if all such safeguards are indeed provided for, I have argued previously that the broader interpretation of the Court’s judgment is correct: no mass surveillance is possible. If that is correct, then the provision in the draft Bill to permit a requirement to collect ‘all’ data is inherently suspect, and it would certainly be a breach of EU law to require telecom providers to retain all traffic data within the scope of the e-privacy Directive without some form of further targeting.

In conclusion, much of the UK’s draft Bill would, if adopted, fall within the scope of EU law, and therefore the Charter of Rights. It is possible, depending on the future statutory instrument, that the rules, when applied, will comply with the data retention safeguards demanded by the CJEU. But the government’s intention, as manifested by the Bill, to reinstitute mass surveillance of telecoms traffic data is a clear breach of the EU Charter of Fundamental Rights.

Barnard & Peers: chapter 6, chapter 9

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Metamorphosis of the third pillar: The end of the transition period for EU criminal and policing law

by Emilio De Capitani

On 1st December 2014, after five years of “legal gestation”, the previous “third pillar” of EU law will finally transform itself from an intergovernmental larva into a supranational butterfly. But will this really ensure a coherent policy, correctly applied by Member States and in full compliance with human rights?

More precisely, in compliance with Article 10 of Protocol 36 to the Treaties, added by the Lisbon Treaty, all the EU measures dealing with police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty will be treated like all the other EU legislative measures as far as the jurisdiction of the CJEU is concerned. Their transposition should be verified on the ground and, in case of problems, the Commission will be entitled to bring the Member States to the CJEU, which will also have the power to interpret these measures following references for a preliminary ruling from all national courts (only some national courts can send questions at present).

Moreover, with the end of the last transitional period for the Area of Freedom Security and Justice (AFSJ) it will be possible on the basis of real and transparent data to decide if dozens of measures (such as the European arrest warrant or the PRUM decision) which have been negotiated in a different political and legal context should be revised to comply with the new EU constitutional framework.

Quite surprisingly the aforementioned deadline – which will inevitably have a profound impact on the Member States’ policies and on the rights of the EU citizens – is approaching without any sort of public debate by the civil society, the national parliaments or the academia.

Even at EU level during the last Justice and Home affairs Council where the point was on the agenda no delegations took the floor nor the recent European Council referred to it in the Guidelines framing the future of the freedom security and justice area.

UK opt-in, opt-out and re-opt-in…

Why this silence? It is more than likely that such a “diplomatic” reserve and understatement are due to the fact that the UK is currently negotiating with the Council and the Commission which will be its final position on the former EU third pillar measures. (see here) It is was indeed to comply with the UK’s “red lines” that in October 2007 in the final phase of the Lisbon Treaty negotiations, a five year period freezing the Commission and CJEU enforcement powers was inserted in Protocol 36 (transitional measures).

At that time the UK government’s aim was (and probably still is) to protect its common law systems, and its police and judicial processes from the risk of the CJEU’s “judicial activism”. According to a House of Lords report, the UK Government asked it because the “vast majority” of pre-Lisbon police and judicial cooperation (PCJ) measures were not drafted with CJEU jurisdiction in mind and had often been agreed at the “lowest common denominator” in order to secure unanimity. As a result, much of the drafting was “not of a high standard and may be open to expansive interpretation by the ECJ” (see point 91 of House Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out decision” HL Paper 159).

Very skilfully the UK also obtained in the same Protocol the right to opt out from all the former third pillar measures before May 2014 as well as the possibility of a second thought, after December 1st 2014 of agreeing with the Council (for Schengen related measures) and with the Commission a new opt-in on some (or all) the former third pillar measures. However, according to Protocol 26 the UK re-opt-in could be granted only “without seriously affecting the practical operability” of the third pillar measures and by “respecting their coherence”.

Last year the UK Government submitted to the Council its Opt-Out decision and is now informally negotiating the possible re-opt-in for around 35/37 third pillar measures (see here)

It is too early to know which will be the result of the EU-UK negotiations. However if the Council and the Commission will accept the UK re-opt-in request (which for some measures can be delayed after the end of 2015) the situation will not be extremely different from the one existing before the block opt-out – except that the UK will now be subject to the Commission and CJEU enforcement powers.

The difficult quest of the former third pillar acquis ….

The UK’s (and Denmark’s) peculiar situation aside, the definition of the pre-Lisbon acquis for police and judicial cooperation in criminal matters will be extremely important also for the other EU member States and, quite probably for the European Parliament (EP) and for the national parliaments. The EP is, since the end of 2009, a co-legislator also for police and judicial cooperation in criminal matters but will not be associated with the implementation of Protocol 36. As for national parliaments, they will now share with the EP wide scrutiny powers (Articles 70, 71 85 and 88 TFEU) on these policies, and will at last have the opportunity to check what happened in the EU outside their national borders and even more inside their national territory. Maybe the December 1st deadline could then be an occasion at least for some of them to verify if these EU measures have been correctly transposed and, if they have to be amended (as it still possible for measures such as Europol and Eurojust which are currently renegotiated at EU level).

A revised list of the former third pillar measures has been recently established by the Commission in cooperation of MS representatives. The 123 measures currently covered by Protocol 36 are very diverse: some of them are of quasi legislative nature (such as the Framework Decisions) some others (such as the international agreements or Conventions, and the Council Decision) even if not legislative, are binding, and some others are of uncertain nature as it is the case for the “Joint Actions” adopted under the Maastricht Treaty regime.

As far as the content is concerned these measures deal with:

- mutual recognition of national decisions (such as the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences…);
- harmonization of the definitions of certain criminal offenses and minimum penalties;
- criminal procedures;
- cross-border cooperation, in particular between police and law enforcement agencies, including the exchange of information and the investigation of crime;
- EU agencies (Europol, Eurojust and the European Police College (CEPOL));
- agreements with third countries on information sharing, mutual legal assistance and extradition

The Commission’s list is not final because between now and December 1st some of the measures could still be replaced by texts currently under negotiation. Moreover the Commission has also announced that some of them – which can be considered obsolete – will be repealed.

…the problem of their transposition and operability …

To assess the “operability” of these measures the European Commission has to verify if they have been correctly transposed by the Member States. The Commission is already collecting the relevant information even if it is not yet entitled to open infringement procedures in case of non compliance by the Member States.

It is worth recalling that in some cases (such as for the European Arrest Warrant) the Commission has already submitted several implementing reports. For other cases, the Commission has only recently adressed to the Member States some pre-alert communications which should be taken in account to avoid judicial proceedings after December 1st 2014.

The first pre-alert Commission report deals with the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention. These Framework Decisions (FD) have to be seen as a package of coherent and complementary legislation that addresses the issue of detention of EU citizens in other Member States and has the potential to lead to a reduction in pre-trial detention or to facilitate social rehabilitation of prisoners in a cross border context. 

The first FD (transfer of Prisoners) allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. On the other hand, it establishes a system for transferring convicted prisoners back to their Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence. Article 25 of the Transfer of Prisoners FD in conjunction with Article 4(6) and 5(3) of the European arrest warrant, allows a Member State to refuse to surrender its nationals or residents or persons staying in the latter if the other Member State undertakes to enforce the prison sentence in accordance with the same FD.

The second FD (Probation and Alternative Sanctions) applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person concerned consents.

The third FD (European Supervision ) concerns provisional release in the pretrial stage. It will enable a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where the non resident is suspected of having committed an offense to the Member State where he normally resides. This will allow a suspected person to be subjected to a supervision measure in his home Member State until the trial takes place in another Member State, instead of being placed into pre-trial detention.

It is worth recalling that at the time of the Commission Communication, well after the relevant deadlines, respectively 10, 14 and 16 Member States have not yet transposed the Framework Decisions.

Another pre-alert Commission report deals with the implementation of the Framework Decision 2008/675/JHA of 24 July 2008 on taking into account of convictions in the Member States of the European Union in the course of new criminal proceedings. This Framework Decision aims to ensure that similar legal effects are given to domestic convictions and convictions from other Member States. Its article 3 is based on the principle of simple assimilation of convictions and imposes as a matter of principle that the legal effects of foreign convictions must be equivalent to the legal effect of domestic convictions. More than 3 years after the implementation date, 6 Member States have yet to notify the measures transposing the obligations of this Framework Decision: BE, ES, IT, LT, MT and PT.

A third pre-alert Commission report deals with the Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of jurisdiction in criminal proceedings. This FD addresses the situations where potentially several Member States are competent to conduct criminal investigations in respect of the crime and proceedings against the alleged perpetrators. This poses challenges not only in terms of coordination and effectiveness of criminal prosecutions, but also with regard to respect for the fundamental principle of criminal law, also enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”), that a person may not be prosecuted and convicted twice for the same offense (Ne bis in idem). More than 1 year after the implementation date, 13 Member States yet to notify the measures transposing the obligations of this Framework Decision: BG, DK, EE, EL, ES, FR, IE, IT, LT, LU, MT, SE and the UK. Seven Member States informed the Commission of the process of preparing relevant transposition measures at national level (BG, EL, ES, FR, LT, MT and SE). However, none of these Member States adopted the measures or notified the Commission at least before April 2014.

In all these pre-alert Communications the Commission has abundantly made clear that the non-implementation of the Framework Decisions by some Member States is problematic since those Member States who have properly implemented the Framework Decisions cannot benefit from their co-operation provisions in their relations with those Member States who did not implement them in time. As a consequence, when cooperating with a Member State who did not implement in time, even those Member States who did so will have to rely on the random and often lengthy practice of traditional mutual legal assistance in criminal matters without a reliable guarantee of a timely detection of bis in idem cases, which should already take place at early stages of criminal proceedings. Such a practice increases significantly a risk of double jeopardy.

…and the problem of their “coherence” and compliance with the EU Charter.

But the priority for the EU legislator in the coming months should be to verify if the former third pillar measures which were negotiated without taking in account the now binding Fundamental rights Charter are consistent with the new EU institutional and legal framework.

Even if some scholars and politicians try to sell the idea that there is a substantial continuity between the pre Lisbon and Post Lisbon era this is certainly not the case for the AFSJ, where the entry into force of the Charter has marked a clear change of perspective. A proof of this has been recently offered by the recent CJEU jurisprudence in the asylum domain where the presumption of compliance with fundamental rights by another Member State has been considered rebuttable in circumstances where fundamental rights are under threat (CJEU Judgment in NS) or to recall the data retention judgment, where the EU data retention  Directive was annulled for violation of the principle of proportionality and of the Charter. If this is the position of the CJEU how many of the 123 measures in the Commission list will require a substantial revision to be considered “coherent” with the new post – Lisbon legal and constitutional framework?

Please don’t throw out real rights for fake security…

Pre-Lisbon measures should also be subject to the parliamentary scrutiny at European and national level as it is required since five years by Article 70 of the TFEU. They should also be effective as they can affect EU citizens’ security and fundamental rights. However it is difficult to ascertain if the interference with EU citizens’ rights has been proportionnate and effective. As the post-Snowden saga has now abundantly showed, “intelligence led policing” and “operational cooperation” cover practices which can be extremely intrusive without offering clear results to the European and/or to the national parliaments. Moreover what is even more worrying is that parliamentarians do not examine whether their country is playing any role in the so called EU “Internal security strategy” or in the “policy cycle” which are less transparent than the “joint actions” negotiated under the Maastricht regime… Are these “soft law” initiatives still justified forty years after the first TREVI cooperation was launched in these domains?  Or, after Lisbon, can the EU citizens expect from the EU and its Member States a legislative framework which can at the same time deliver effective security and protect fundamental rights?

This was announced by the new treaties and by the Charter five years ago and what EU citizens are deemed to obtain; it is then the duty of the incoming Commission and of the newly elected European Parliament to do what the European Council didn’t dare to propose.

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The CJEU increases public access to legal advice on international treaties

Steve Peers

Introduction

The different approaches between the EU and the USA as regards data protection continue to result in considerable friction. Even before the Snowden revelations about the surveillance of EU citizens by the American security services, there were arguments about American access to airlines’ passenger name records and information about money transfers.

Both of these disputes were eventually solved by means of a treaty between the US and the EU regulating the USA’s access to such information. As regards money transfers, that access enables the USA to carry out its ‘Terrorist Finance Tracking Programme’ (TFTP). While the first version of the treaty regulating access to the TFTP data was rejected by the European Parliament (EP), a second version was approved after the text was amended.

After the CJEU’s recent judgments concerning data retention and Google Spain, and in light of the pending Europe v Facebookcase, it might now be questioned whether the EU/US treaties on passenger data and TFTP are invalid due to breach of the data protection rights guaranteed by EU law. However, that’s a topic for a future blog post.

In the meantime, the Court of Justice of the European Union (CJEU) ruled today on a related question. When the negotiations for the TFTP treaty were underway, the ‘legal base’ of the future treaty (ie, the precise EU powers to negotiate and conclude it) was disputed, and the Council’s legal service gave a legal opinion on this issue. A Member of the European Parliament (MEP), Sophie in’t Veld, requested access to the legal opinion and was refused, on the grounds that revealing legal advice relating to international negotiations would undermine those negotiations. She challenged this decision before the General Court, and was partly successful. 

The Council appealed that judgment to the Court of Justice, and has entirely lost in today’s judgment. While that judgment significantly increases public access to documents as regards legal advice, it still leaves intact the possibility of the institutions to refuse access as regards the substance of negotiations. 

The judgment

The EU’s access to documents legislation (Regulation 1049/2001) provides in principle for public access to EU documents. It contains exceptions allowing documents to be refused on grounds of (among other grounds) ‘international relations’ and ‘legal advice’. According to the General Court, the Council legal service’s advice on the TFTP treaty could be refused on the former ground, to the extent that it disclosed substantive details of the draft negotiating mandate, since this would damage the EU’s position by revealing it to the other side.  

However, to the extent that the legal advice did not reveal the EU’s substantive negotiating position, this ground for refusal could not automatically be applied. The General Court took into account the fact that an EP resolution had already made this particular legal base issue public, and that legal base disputes relating to international treaties can be the subject of advance rulings of the CJEU before those treaties come into force.

As regards this first issue, all of the Council’s objections to the judgment were rejected by the CJEU. The Court ruled that while legal advice relating to international treaty negotiations did not always have to be disclosed, it could not always automatically be refused either. Rather, the Council had to give reasons why disclosing the opinion to the public (after redacting all of the information relating to the substance of the negotiations) would undermine international negotiations.

Furthermore, the CJEU ruled that the General Court was right to apply a more stringent standard of judicial review as regards this issue as compared to the substantive negotiating mandate (where the EU courts would still leave a wide discretion to the EU institutions).

The second issue was the ‘legal advice’ exception. The CJEU had previously ruled, in the Turco case, that access to legal advice could only be exceptionally refused in legislative proceedings. By contrast, the negotiation of an international treaty is an executive power, conferred by the Treaties upon the EU Commission or the High Representative for EU foreign policy.

But nevertheless, the General Court had ruled that the legal advice exception could not be applied in this case either. The Council’s argument that it needed to keep legal advice secret to avoid embarrassment was too general and unsubstantiated. It was irrelevant that the legal advice concerned an international treaty, since the ‘international relations’ exception already addressed that aspect. Moreover, the EU legislation provides that the use of the ‘legal advice’ exception is subject to a public interest override. On this point, there was a close link to the EU’s legislative activity relating to police cooperation and personal data exchange, and waiting until the agreement was in force would rob public access to information of much of its purpose.  Again, all of the Council’s objections to the judgment were rejected by the CJEU.

Comments

In principle, this judgment could significantly open up the debate concerning the legality of planned international treaties. While the CJEU did not rule that legal advice in such cases should be disclosed as a rule (as legal advice relating to legislative procedures must), it is now clear that refusing access to such documents as a rule is a breach of the access to documents regulation. The Council (or Commission) must give detailed specific reasons to show why they think such documents should be refused because their release would undermine the conduct of negotiations in any specific case. This is obviously a difficult task, since to provide those reasons, those institutions would have to predict the hypothetical actions of third States without disclosing to the applicant much of the details.

Moreover, they must consider the public interest in access to that legal advice. The General Court’s further reasoning on this issue wasn’t expressly endorsed by the CJEU, but neither did the CJEU disavow it. So it is arguable that whenever there is a link between the treaty negotiations in question and the EU’s legislative activity, and/or the treaty in question touches upon an issue of broad public concern like data protection, then the public interest overrides the Council’s.

On the other hand, unlike the position as regards the EU legislative process, the CJEU has left intact wide discretion for the institutions to refuse to disclose their negotiating position, and therefore any details of that position in the legal advice can be redacted. Since there is an obvious close link between the legal advice and the substantive position, it remains to be seen whether the documents will still be intelligible.

Will the release of such documents damage the EU’s negotiating positions as regards international treaties? In the case of the USA, surely it has seen all the documents anyway, due to the efficiency of its espionage agencies. That will also be the case, to some extent, with some or all of the other countries the EU negotiates with.

As for the European Parliament, the Treaty anyway guarantees it information on all ongoing negotiations, and the CJEU has recently confirmed that this is an enforceable right. However, it is not yet clear how far that right extends, and in particular whether it extends to negotiating mandates. In any event, it is clear from the judgment that if the EP hears about a legal dispute concerning a planned treaty, and decides to make that dispute public by referring to it in a resolution, the Council’s argument that the legal advice cannot be disclosed is significantly weakened.

Another reason for the secrecy of the EU’s international negotiations may be to avoid complications arising from public debate. However, this strategy is largely self-defeating, since the secrecy itself engenders great suspicion from critics about what the EU and its negotiating partners might be planning, and so may fuel opposition to the eventual treaty (if the negotiations are successful). A clear case in point is the current talks on an EU/US free trade agreement.  

It is true to say that this process is ultimately democratic, since all international treaties agreed by the EU and third States then have to be approved by the Council, and most have to be approved by the European Parliament and often also national parliaments. However, it is not democratic in the full sense of the term, since there is a very limited opportunity for and open and public debate (as compared to the legislative process) before the negotiations have concluded.

Today’s judgment has opened up that debate somewhat, by making it easier to make a successful request for the legal advice relating to such negotiations. Sometimes the legal advice may relate to broad issues of public concern, such as human rights protection, but sometimes it will relate to more technical institutional points. The latter points could still be relevant politically, since they could determine (for instance) how much power Member States or the EP have to block a treaty if they object to the substance of it.

But overall, the judgment will not satisfy the demand for greater openness of the treaty negotiation procedure, and so the paradoxical effect of secrecy breeding opposition to treaties will continue. For those who seek greater public involvement in the process, getting access to more information on legal advice but no further information on the substance of the talks is like being served a salad when they are hungry for steak.

Barnard & Peers: chapter 3, chapter 24 

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The French ban on public face-veiling: enlarging the margin of appreciation

Ronan McCrea

Senior Lecturer in Law, University College London; author of Religion and the Public Order of the European Union

The Grand Chamber of the European Court of Human Rights has issued its eagerly-anticipated decision in SAS v France, the challenge to the French law of 2010 banning face-veiling in public spaces.

The applicant, a French national represented by British lawyers, had alleged that the law violated no fewer than 6 articles of the ECHR: Article 3 (inhuman and degrading treatment), Article 8 (privacy), Article 9 (freedom of religion and belief), Article 10 (freedom of expression), Article 11 (freedom of association) and Article 14 (non-discrimination in relation to the rights protected by the Convention).

The claims under Articles 3 and 11 were easily dismissed with the Court noting that the applicant’s treatment fell well short of the severe treatment needed to constitute the “inhuman and degrading treatment” prohibited by Article 3 and that no evidence had been provided to substantiate a claim to breach of her freedom of association.

More narrowly and more controversially, it held, by 15 votes to 2, that there had been no violation of Articles 8, 9, 10 or 14. Despite the large majority, the decision was finely balanced. The Court rejected three of the four justifications offered by the French authorities for the law and accepted the fourth only with some hesitancy and with heavy reliance on the need for the Strasbourg Court to defer to the judgment of democratically-legitimated national authorities on these matters.

The Court treated the challenge under Articles 8, 9 and 10 as raising substantially similar issues; namely whether the restriction of the Applicant’s ability to dress in accordance with her beliefs and desires, could be justified by need to protect public order or the rights and freedoms of others.

The judgment reaffirms the Court’s conceptualisation of freedom of religion and belief as an individual right. Rightly shying away from the theologians’ task of adjudicating on what Islam does or does not require, the Court declared that it was “of no relevance” that most Muslim women do not see the face veil as necessary. The fact that the Applicant herself wished to wear the veil for religious reasons was, for the Court, sufficient to bring her actions within the scope of Article 9.

The French authorities put forward four arguments in defence of the prohibition: public safety (related to the need for individuals to be identifiable), the protection of equality between men and women, the protection of human dignity, and the protection of the minimum requirements of life in society.

Three of these four arguments were rejected by the Court. It found that, while public safety could be invoked to require individuals to reveal their faces for identification checks or in certain contexts, a blanket ban on face-veiling could only be sustainable where there was a general threat to public safety, something the French authorities had failed to show.

In relation to the protection of human dignity the Court held that, though it is an important value, a blanket ban could not be justified. It reached this conclusion on the basis that wearing a face veil “is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy”. It further noted the “variability of the notions of virtuousness and decency that are applied to the uncovering of the human body” and that there was no evidence that those wearing the veil express contempt towards others or undermine the dignity of others (para 120).

The invocation of variability of notions of decency in relation to clothing has echoes of the Court’s decision in Vajnai v Hungary where it found a ban on the display of the red star to violate the Convention partly on the basis that the red star had a variety of meanings. The focus on the subjective intentions of veil wearers is interesting in that decisions on dignity have generally focused on objective notions of dignity rather than the perception of the individual carrying out the allegedly undignified act. For example, the Court of Justice of the European Union upheld a German restriction on games that simulated killing in the Omega Spielhallen case without inquiring into whether players of the game intended to violate respect for human life, and the UN Human Rights Committee rejected the complaint of a dwarf rendered unemployed by a French ban on “dwarf tossing” notwithstanding that the applicant felt his dignity was more compromised by unemployment than being thrown around by larger people as part of a performance. If, as the Court’s ruling suggests, it is the subjective intent of the individual that counts then laws seeking to protect collective ideas of dignity are on a much more shaky foundation than before.

The Court’s approach to the claim that the French law sought to protect equality between men and women was equally dismissive. While it accepted that protecting gender equality was a basis on which Convention rights could be restricted it found that “a State Party cannot invoke gender equality in order to ban a practice that is defended by women (…) unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (119). As in relation to human dignity, the Court adopts a notably individualistic position, arguing that if women choose to wear the veil, then the equality of men and women cannot be invoked to restrict such a choice.

This seems a little simplistic. Equality laws often restrict the liberty of individual members of a disadvantaged group to ensure the broader fair treatment of the group as a whole. For example, a woman who does not believe in the principle of equal pay for equal work, would not be permitted to take a job at a lower wage than her male colleagues on that basis. The Court might more defensibly have said that the symbolic harm done by the voluntary wearing of clothing that anonymises women in public does not do sufficient damage to the principle of gender equality to justify the restriction on liberty inherent in prohibition of such clothing. Instead it seems to make a balder claim that if women voluntarily carry out an action it can never be legitimate to use the goal of gender equality to restrict such an action. This seems insufficiently thought-through.

The only argument of the French authorities accepted by the Court was that which asserted that the law in question sought to protect “the minimum requirement of civility that is necessary for social interaction” (141). The Court found that “it indeed falls within the powers of the State to secure conditions whereby individuals can live together in their diversity” it held that “the Court is able to accept that a State may find it essential to give particular weight (…) to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places” (141).

The text of Articles 8, 9 and 10 of the ECHR require that measures to restrict privacy, freedom of religion or belief and freedom of expression by justified by a need to protect “the rights and freedoms of others” (or public order and public safety, grounds already rejected by the majority in this case as insufficient to justify a veil ban).

The two dissenting judges sharply questioned whether ideas of civility and ‘living together’ fell within the concept of “rights and freedoms of others” saying that to characterise these ideas in this way was “far-fetched and vague”.

For its part, the majority, though finding that securing conditions for living together did fall within the concept of “rights and freedoms of others”, exhibited significant hesitancy before finding that the French legislation represented a proportionate attempt to protect such rights and freedoms. It noted that the small number of women wearing the veil meant that a blanket ban “may seem excessive” (145), that the ban may have the effect of isolating women (146), that other international bodies had considered the ban disproportionate (147) and that it was concerned by “certain Islamophobic remarks” that featured in the debate on the legislation (149).

Nevertheless, the majority concluded that the ban was proportionate. In so finding it attributed significance to the fact that that the law focused on face-covering rather than the religious connotation of the veil (151) and imposed only a light penalty (a fine of up to 150 Euro). Most significantly it found that the law could be seen as “seeking to protect a principle of interaction between individuals which, in [the State’s] view is essential for the expression not only of pluralism but also of tolerance and broadmindedness without which there is no democratic society” (153) and that the Court “has a duty to exercise a degree of restraint” in assessing the balance struck by the democratic process of a signatory state.

Given the lack of European consensus on this matter and given that this was a matter on which “opinions in a democratic society may reasonably differ” a wide margin of appreciation was called for and no violation of the Convention had been shown. As the law in question represented a proportionate restriction of Convention rights the Court concluded that any indirect discrimination inherent in the ban was justified and that the discrimination (Article 14) claim therefore also failed.

Where does this judgment leave the relationship between the individual, religion, the state and the law in Europe? Given the highly-controversial nature of the law in question and the broad political support for the legislation in question in France, it is unsurprising that the European Court fled to the familiar tools of the margin of appreciation to avoid making a potentially politically-explosive decision. The political firestorm caused by the initial decision in Lautsi v Italy (which held the presence of a crucifix in the classroom of a state school to violate the Convention and which was over-turned on appeal) highlighted the danger for European institutions in seeking to impose Europe-wide solutions on sensitive matters such as religion in public life.

The argument over whether the protection of the principle of ‘living together’ could be a proper basis for the restriction of a fundamental right highlights an important issue for both EU and ECHR law. The framework of rights as a means to adjudicate on disputes can be very problematic. Rights cover only limited aspects of important issues. The Strasbourg Court sees freedom of religion and belief as largely an individual right of choice in one’s beliefs yet this only covers limited aspects of the religious experience of the believer. The secular state is based on a commitment to avoiding religious contestation for political power and a commitment to transcending our religious differences when we come together as citizens in a democracy to make laws that will bind a religiously-diverse population. This is something that cannot readily be translated into a rights claim.

EU Single Market law has struggled to give adequate weight to collective goals such as trade union rights, environmental or public health goals because of the transformation by the CJEU of economic freedoms into fundamental rights. Just as “mandatory requirements” had to be read into the Treaty by the Court of Justice to allow economic free movement rights to be curtailed so as to protect collective goals, the Strasbourg Court has had to adopt an expansive interpretation of “rights and freedoms of others” to ensure adequate protection of broader commitments to religious coexistence.

The dissenting judges are right that the majority’s reading of this term is strained. However, it is necessary to consider whether any other approach is possible. Whether the approach of the French authorities in this case was or was not proportionate, our life together is about more than the rights that we hold against each other and there are important principles that underpin liberal democratic life that are very imperfectly translated into rights terms.

Given that the Court of Justice in Luxembourg tends to defer to Strasbourg on matters of fundamental rights, the decision to uphold the French law will mean that future challenges under EU law are unlikely to succeed. Such challenges could have alleged disproportionate discrimination on grounds of religion or gender in the employment sphere in violation of Directive 2000/78 (the legislation which bans discrimination in employment on grounds of religion, age, sexual orientation or disability) or a disproportionate restriction of free movement rights of a veil-wearing EU national who wished to live in France. The conclusion that the ban is legitimate and proportionate undermines such potential challenges to a significant degree.

The overall impression left by the judgment is of a Court that was uneasy with elements of the French law but was unwilling to intervene in such a controversial area. Indeed, its reasoning contained a number of reaffirmations of its previous case-law upholding less wide-ranging restrictions of religious symbols in particular contexts such as schools, the civil service and identity checks.

The relationship between law and religion is in a state of flux in many EU states. The UK is currently engaged in intense debate on the role of religion in education and the limits of its multicultural model. Sustainable solutions will require trial and error and give and take from each side. Rights will be part of this discussion but so too will more abstract commitments to pluralism and coexistence and communication and compromise. It is therefore perhaps wise of the Strasbourg Court not to seek to impose a Europe-wide solution in such a complex and changing area at this stage.

Barnard & Peers: chapter 9, chapter 20

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