Pyrrhic victory for the Greek government: the CJEU rules on Turkey as a “safe third country”

Professor Steve Peers, Royal Holloway University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

Hamster idiom credit: Adam Sharp

(Thanks to Zoe Gardner for discussion of the case; the following analysis is my own)

 

Introduction

Remember the ‘refugee crisis’ of 2015-16? One part of the EU’s response to it was to negotiate a ‘joint statement’ with Turkey (see comments and criticism here, here and here) that, among other things, led to Turkey agreeing to take back asylum-seekers from the Greek islands. Greece facilitated the application of this process by determining that Turkey was a ‘safe third country’ (ie that asylum-seekers could and should have applied there instead, given that this other country is ‘safe’) under EU asylum law, initially for Syrian asylum-seekers in the eastern Greek islands. Faced with a legal challenge to this determination, the Greek Council of State ruled in 2017 that the determination was legal, deciding by a 13-12 vote not to ask the CJEU to interpret the issue of EU law at stake. For its part the EU General Court (upheld on appeal by the CJEU) rejected legal challenges to the joint statement, on the frankly bizarre ground that the European Council had nothing to do with the EU/Turkey joint statement (which referred to EU law issues such as visa waivers).

Subsequently in 2020, Turkey decided to refuse all readmission of asylum-seekers from Greece, stating that (as quoted in note 10 of the Advocate-General’s opinion):

 Responding to repeated requests from the Greek authorities and the European Commission regarding the resumption of return operations, [the Republic of Türkiye] has stated that no return operation would take place unless the alleged pushbacks along the Turkish-Greek border stop and [the Hellenic Republic] revokes its decision to consider [the Republic of Türkiye] a Safe Third Country.

Greece nevertheless decided to list Turkey as a ‘safe third country’ more broadly in 2021, for asylum-seekers from Syria, Afghanistan, Pakistan, Bangladesh or Somalia; it added Albania and North Macedonia to its ‘safe third country’ list soon afterwards. In light of the EU law rules on ‘safe third country’ (discussed further below), two NGOs (the Greek Council for Refugees and Refugee Support in the Aegean) decided to challenge the Greek government decision to list Turkey, resulting this time in the view of the Council of State in February 2023 (by an 18-4 vote) that the listing of Turkey was invalid, on the grounds that EU law precluded designating a country which refused to readmit asylum-seekers as a ‘safe third country’. (Other EU law arguments against the designation of Turkey were rejected by the national court and not referred to the CJEU: see the analysis by Minos Mouzourakis).  But unlike in 2017, there was great deference to the view of the (much smaller) minority (two judges apiece argued that the issue of readmission was relevant instead when ruling applications inadmissible, or when enforcing that decision). So the national court decided to ask the CJEU questions about the interpretation of EU law on the readmission point before giving its final ruling. The CJEU delivered its judgment last Friday.

This is not only the first time that the CJEU has been asked about an aspect of the EU/Turkey asylum relationship. Remarkably, despite the huge number of asylum seekers that have come to Greece over the last decade and more, this is also the first time that the CJEU has been asked any questions about EU asylum law by any Greek court.

 

EU legal framework

Legislation

The definition of ‘safe third country’ for the EU is currently set out in Article 38 of the EU’s asylum procedures Directive. (This is about the ‘safety’ of non-EU countries, ie it is distinct from the EU Member States regarding each other as ‘safe’ countries, under the Dublin rules) First, Article 38(1) provides that the (optional) ‘safe third country’ concept can ‘only’ be applied if Member States are satisfied that certain ‘principles’ are ensured for asylum-seekers in that country: (a) ‘life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion’; (b) ‘there is no risk of serious harm as defined in’ the EU qualification Directive; (c) ‘the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected’; (d)  ‘prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected’; and (e) ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

Secondly, Article 38(2) requires Member States to subject the application of the ‘safe third country’ rule to national law rules, including: (a) ‘requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country’; (b) ‘rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’; and (c) ‘rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances’. Also, an asylum-seeker must ‘be allowed to challenge the existence of a connection between him or her and the third country’, as referred to in point (a).

Next, Article 38(3) requires Member States to inform the applicant that the principle is being applied to them, and also to give the asylum-seeker a document informing the supposedly ‘safe’ third country that the merits of their asylum claim have not been examined.

Crucially for this case, Article 38(4) then provides that:

Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. [ie an ‘ordinary’ examination of the merits of an asylum claim]

Finally, Article 38(5) obliges Member States to inform the Commission of their use of the concept.

The practical relevance of applying the ‘safe third country’ notion is (among other things) that it is a ground of (optional) inadmissibility under Article 33 of the Directive. And if the case is inadmissible, the asylum application is not further considered on the merits and has failed in that Member State (subject to an appeal of the inadmissibility decision, or the limited prospect of a ‘repeat application’, discussed further below). The failed asylum-seeker can then deprived of support as an asylum seeker under the reception conditions Directive and detained and removed under the Returns Directive. Of course, the impact of this is in theory ameliorated in ‘safe third country’ cases because the supposedly ‘safe’ country will readmit the person concerned and consider their asylum application properly. In practice, as we have seen, Turkey was explicitly and unambiguously refusing to readmit asylum-seekers from Greece in the context of the ‘safe third country’ concept.

Case law

The CJEU had interpreted the ‘safe third country’ rule in some prior case law, all concerning Hungary. First of all, in Case C‑564/18 (paras 29-51 of the judgment), the CJEU confirmed that the grounds of inadmissibility listed in the Directive were exhaustive (‘only’), and ruled that a national law applying a ‘safe third country’ principle to non-EU States where the asylum-seeker ‘as not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed’ was not consistent with the requirements of Article 38(1) of the Directive, in particular because it omitted the ‘non-refoulement’ requirement. Moreover, mere transit through the non-EU country was not enough for there to be a ‘connection’ with that country as required by Article 38(2).

Next, the Court reiterated these points in its judgment in Joined Cases C-924/19 and C-925/19 PPU (paras 148-165); but questions about what happens when the non-EU State refuses to readmit the asylum-seekers – the issue since addressed in last week’s judgment – were ruled inadmissible (paras 166-174). However, the Advocate-General’s opinion in that case discusses the issue (paras 107-127), taking the view that the refusal of readmission is only relevant at the point of enforcement of a decision based on the principle.  

Finally, in Commission v Hungary (Case C‑821/19), along with ruling on the criminalisation of assistance to asylum seekers, the Court again reiterated that the Hungarian law breached Article 38(1) and (2) of the Directive. The existence of a (then) pending proposal to amend the Directive on this point (since adopted as part of the 2024 asylum pact – but without some of the changes originally proposed) was irrelevant in determining whether a Member State was in breach of EU law at the time of the alleged breach.

 

Greek practice

As noted above, Greece had listed Turkey as a ‘safe third country’ despite Turkey’s refusal to readmit anyone in that context. While the CJEU judgment says nothing about the practice of the authorities, and the Advocate-General’s opinion says little (paras 65-68 of the opinion), one can find rather more information at the bottom of the ivory tower, in the recent Pro-Asyl report on the ‘safe third country’ principle in Greece, and in the annual AIDA report on Greece (‘safe third country’ section).

The reports state that over 10,000 asylum claims have been found inadmissible on the basis of the Greek listing of Turkey as a ‘safe third country’, although around 12,000 asylum claims have been found admissible (in some cases because the asylum-seekers argued that Turkey had not allowed them to make an asylum claim, or due to past exposure to refoulement, ie return to an unsafe country, or because they lacked a sufficient ‘connection’ with Turkey, on the basis of the national law implementing Article 38(2) of the Directive). Also, the reports are highly critical of the conclusion that Turkey is ‘safe’ – although the recent CJEU judgment does not address this issue, because the national court did not ask the CJEU about it.

Like the Advocate-General’s opinion, the Pro-Asyl study reports that Greek authorities apply the readmission test at the point of enforcement of a ‘safe third country’ decision. When Turkey then refuses readmission, the Greek bodies refuse to withdraw their prior decisions, leaving asylum-seekers to make a ‘repeat application’. But there are delays in registering these applications, and the authorities often reject them because they do not believe that the refusal of readmission is a ‘new element or finding’ (as required for a repeat application to be admissible under the EU Directive). But at least some courts rule against detention in such cases, given that there is no reasonable prospect of return (as required by the Returns Directive).

 

The judgment

The CJEU’s judgment began by answering the first question referred by the national court, rephrasing it as asking ‘in essence, whether’ the ‘safe third country’ rule in the Directive, ‘read in the light of Article 18 of the Charter’ on the right to asylum, ‘must be interpreted as precluding legislation of a Member State classifying a third country as generally safe for certain categories of applicants for international protection where, despite the legal obligation to which it is subject, that third country has generally suspended the admission or readmission of those applicants to its territory and there is no foreseeable prospect of a change in that position’.

First, the Court reiterated its case law that the grounds for inadmissibility of asylum applications in the procedures Directive (including ‘safe third country’ as defined in the Directive) are ‘exhaustive’, ie the Member States cannot add more grounds of their own (such as a divergent national definition of ‘safe third country’). It pointed out that the EU law definition ‘is subject to compliance with the cumulative conditions laid down’ in Article 38 of the Directive, as summarised above. But as the national court had already ruled that Greek law complied with the basic principles in Article 38(1), the CJEU did not examine that point. But it summarised the requirements for national law set out in Article 38(2) and the information obligations in Article 38(3), then recalled the Article 38(4) rule that ‘where the third country concerned does not permit the applicant for international protection to enter its territory, the Member States are to ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II of that directive’.

In the CJEU’s view, it followed from this first from the wording of the Directive that a Member State can designate a country as ‘generally safe’ by ‘an act of general application’. The references to national law in Article 38(2) referred to such a designation, as did the preamble to the Directive. Also, the Directive did not make the validity of such a general act ‘subject to the condition that it be proved that the applicants for international protection concerned will actually be admitted or readmitted to the territory of that third country’. This was not among the national law rules in Article 38(2); and the wording of Article 38(4) implied that the designation of the third country as ‘safe’ preceded the consideration of the issue of whether that country actually readmitted asylum seekers.

The CJEU also believed that this followed from the context of the Directive, in particular by comparison with the wording of the rules on ‘first country of asylum’ (ie where the asylum seeker already had protection, as distinct from where they could have sought it) on the readmission issue.

Finally, in the CJEU’s view, this interpretation also did not conflict with the objective of the Directive, as set out in the preamble, that in the interests of asylum-seekers in particular, asylum applications ‘should be made as soon as possible, without prejudice to an adequate and complete examination being carried out’. This objective was addressed by Article 38(4), requiring that a Member State ‘ensure’ access to an asylum decision on the merits, in accordance with the usual rules, if the ‘safe third country’ refused readmission. And then a key point:

54      It follows that, where it is established that the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of Directive 2013/32. Furthermore, that Member State may not unjustifiably postpone the examination of those applications and must, inter alia, ensure that that examination is conducted on an individual basis, in accordance with Article 10(3)(a) of that directive and in compliance with the time limits set out in Article 31 thereof.

This interpretation, in the Court’s view, ‘is likewise not such as to deprive of any practical effect the right of an applicant for international protection, as enshrined in Article 18 of the Charter and given specific expression by that directive, to obtain the status of beneficiary of international protection, provided that the conditions required by EU law are met.

Having ruled, in effect, that the designation of Turkey was valid, the CJEU felt it was unnecessary to answer the second and third questions referred by the national court, on whether the refusal of readmission was a factor to be considered at the admissibility or the enforcement stage. But as we have seen, the Court had already de facto answered the second question: if it is ‘established’ that the ‘safe’ third country ‘does not in fact’ readmit the asylum seekers concerned, a Member State ‘cannot’ find their applications admissible, and must consider those applications on the merits (moreover, without ‘unjustifiable’ postponement, and subject to the deadlines in the Directive). And that renders the third question moot.

 

Comments

Greece can have a dog; but it will be wagged by its Turkish tail. That is the effect of the Court’s judgment: in more technical legal language, Turkey can remain on Greece’s ‘safe third country’ list, but the practical impact of this is zero as long as Turkey refuses to readmit asylum-seekers from Greece, because asylum applications cannot be found inadmissible on this ground. The wheel of designation of Turkey as a ‘safe third country’ keeps spinning, but the hamster of inadmissibility of asylum applications is dead. Let’s unpack this further, examining first the reasoning of the judgment and then its potential consequences.  

Judicial reasoning

The CJEU begins by, with respect, answering a ‘straw man’ question that it had not been asked.  The national court did not ask the CJEU if it was possible to designate ‘safe third countries’ at all; rather it asked if those countries could be designated if they failed to readmit asylum-seekers. The references to common principles on ‘safe third countries’ in the preamble to the Directive do not answer the question as to what those common principles are; a rule that failure to readmit precludes listing a country would be a ‘common principle’ too. However, the Court’s points that Article 38(2) on national law and (especially) Article 38(4) on readmission presume that the country concerned is already on a list are more convincing.

Most importantly, the Court’s finding that applications cannot be inadmissible on ‘safe third country’ grounds where the country concerned refuses to readmit, requiring a Member State to consider the merits of such applications, is particularly convincing.  Given that between Greece and Turkey the readmission will not take place, and in light of the evidence that repeat applications are difficult to make and are often rejected, this is the best way to ensure that the obligations set out in Article 38(4), coupled with the principle of considering applications as soon as possible, are met.

Unlike some judgments, this is not so much a ‘liberal’ or ‘activist’ interpretation of EU asylum law by the CJEU, but rather the overdue termination of conservative activism by the Greek authorities and lower courts. In light of the clear obligation in Article 38(4) to consider the merits of an asylum application if the asylum seeker is not readmitted to a ‘safe third country’, in the context of the absolute refusal of Turkey to readmit, the failure of the authorities to consider the merits of many of those applications, and of the courts to require them to do so, is unjustifiable and frankly shocking.

Consequences in practice

First and foremost, what happens to the 10,000 plus asylum seekers whose applications were already rejected as inadmissible? As noted above, some had previously tried to make repeat applications, but faced the difficulty that they had to invoke ‘new elements or findings’ in order to do so, which was often difficult to do. But their ability to invoke the ‘repeat applications’ clause in the Directive has now, as a consequence purely of the Court of Justice’s recent judgment, undergone a Copernican revolution. This is because the CJEU has previously ruled (see Joined Cases C-924/19 and C-925/19 PPU, paras 175-203, confirmed in Case C-216/22) that its own judgments on EU asylum law are a new element or finding in filing a repeat application, where those judgments are relevant and add significantly to the likelihood of an asylum application being successful. For those asylum-seekers whose application was found inadmissible on ‘safe third country’ grounds despite Turkey’s refusal to readmit them, last week’s judgment is obviously highly relevant; and overturning the finding that their applications were inadmissible equally obviously significantly increases the odds that their application will be successful. (Moreover, the judgment in Joined Cases C-924/19 and C-925/19 PPU is especially relevant by analogy here, since the prior national judgments which conflicted with a later CJEU judgment in that case also concerned an unlawful application of the ‘safe third country’ rules).

Therefore, if the rejected asylum-seekers apply again, the Greek asylum system will now have to decide on the merits of thousands of asylum applications that it wrongly ruled were inadmissible in the first place. A pending CJEU case referred from Ireland may be relevant by analogy in establishing whether Greece has to pay damages too. Finally, if any Afghan women asylum-seekers were among those whose applications were considered inadmissible, they can also rely on another CJEU judgment from the same day (discussed here) as a ‘new element or finding’, supporting the merits and fast-tracking of their gender-based persecution claims.

As for current or future applicants, their applications cannot be rejected as inadmissible on the grounds that Turkey is a 'safe third country' at all. Nor can they be rejected on the grounds that Turkey is a ‘first country of asylum’ for them: without even looking at the substance of that concept, the CJEU judgment explicitly stated that this principle cannot even get off the ground if the country concerned will not readmit the asylum seeker.

What about applicants after the asylum pact takes effect? The Court of Justice judgment from last week only mentions the new asylum procedures Regulation (discussed here) in passing, but as the Advocate-General’s opinion pointed out (in para 64), the interpretation of the Directive ultimately followed by the Court is explicitly set out in the Regulation, now being built into the definition of inadmissibility – also as regards the ‘first country of asylum’ principle (these grounds of inadmissibility can be invoked for either principle ‘unless it is clear that the applicant will not be admitted or readmitted to that country’). (See also recital 53 in the preamble to the Regulation). Whether the planned review of the ‘safe third country’ rules in the Regulation in 2025 affects these issues remains to be seen.

Finally, the Court’s judgment understandably only dealt with situations where the refusal of readmission is certain at the time of considering the possible application of the ‘safe third country’ rule. It did not deal with the scenario where refusal was merely a possibility – as that was hypothetical on the facts. How should such cases be dealt with?

The starting point is that the current Directive (recital 44 in the preamble) implies the possibility of an inadmissibility decision in that scenario: Member States do not have to examine the merits of an application where ‘there are grounds for considering that the applicant will be admitted or readmitted to that [‘safe’ third] country’. The inadmissibility rule in the new Regulation points in the same direction: it can’t be applied if ‘it is clear that’ readmission is not going to happen (see also recital 43 in the preamble to the Regulation). But this implies that the inadmissibility rule can be applied if it is not clear that readmission is ruled out. On the other hand, the recent judgment points to the importance of deciding on applications as soon as possible, without unjustifiable postponements, while ensuring the application of the Charter right to asylum. How best to reconcile the possibility of the adoption of inadmissibility decisions with the need to take decisions speedily and afford an effective prospect of having an asylum application decided on the merits, if there is uncertainty about whether readmission will actually take place?

The 2024 procedures Regulation already expressly provides (in recital 53 in the preamble) that access to the Member State’s asylum system must be offered again if readmission does not take place:

…if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation

How should that principle apply in concrete terms? The best approach is to infer an obligation upon the Member State to act with due diligence to attempt to secure the readmission, starting as soon as it takes the inadmissibility decision (after any appeals, or the prospect of appeals, against that decision are spent). From that point, the Member State should have a reasonable time frame to request readmission from the non-EU country concerned. By analogy with the procedures Regulation time limit for deciding on inadmissibility, two months should be sufficient. If the non-EU country refuses readmission, or does not reply within the time limit set out in the readmission arrangements in force, or accepts readmission in principle but does not carry it out in practice within the relevant time limit, then the Member State’s obligation to consider the application on the merits where readmission does not take place must be triggered. Procedurally either the inadmissibility decision must be considered as withdrawn from that point (it makes sense to consider it as only provisional until readmission is actually carried out), or a repeat application must be considered – the requirement of new developments being satisfied by the inability, subsequent to the inadmissibility decision, to ensure readmission in practice within a reasonable time frame. The inadmissibility decision was based on the presumption that readmission would be secured within a reasonable period; that presumption has since been rebutted.

The final word on the impact of last week’s judgment should go to the asylum NGOs who brought the case:

…the CJEU’s judgment is of major importance because it overturns an arbitrary and abusive practice of the Greek authorities which has been in force for many years, of wholesale rejecting asylum applications as inadmissible under the safe third country principle, and puts an end to the denial of the rights of thousands of applicants, by prohibiting their rejection when there is no possibility of their readmission to Türkiye and dictating their individual examination in accordance with the Directive.

Is this the end of football’s transfer system? An immediate reaction to the Court’s ruling in Diarra (C-650/22).

 

Stephen Weatherill, Somerville College and Faculty of Law, Oxford University

Photo credit: Addesolen, via Wikimedia Commons

 

Introduction

 

‘Is this the end of football’s transfer system?’ So shrieked the media in December 1995 when the Court of Justice decided the Bosman case (C-415/93). And the same question has now hit the headlines after the Court’s ruling on 4 October 2024 in Diarra (C-650/22). The answer was ‘no’ back in 1995. And the answer is still ‘no’ today.

 

The transfer system which enmeshed Diarra and led to the litigation is exposed by the Court’s judgment on 4 October as grossly deficient and incompatible with EU law. It will need to be changed. But a system of sorts, specific to football, can survive this judgment. And it is unlikely anything will happen quickly. It took several years after the Bosman ruling for the system to be revised, and Bosman was clearer on what needed to be changed – the exclusion of out-of-contract players - than Diarra is. But there will need to be change. Most of all, the system will need to be made less restrictive and the consequences of unilateral breach of contract will need to be made more predictable.

 

The litigation

 

Diarra played for Lokomotiv Moscow. A dispute arose. The club terminated his contract for reasons related to his conduct and brought a claim for compensation before the Dispute Resolution Chamber under FIFA’s Regulations on the Status and Transfer of Players. The player counterclaimed. In the meantime he tried to find a new club. Diarra’s claim which reached the Court in Luxembourg via a reference from the cour d’appel de Mons in Belgium concerns his failure to find a new club. Under the FIFA Regulations it was possible that the dispute with his old club might, once finally resolved, have resulted in any new club being liable alongside Diarra to pay compensation to Lokomotiv Moscow under the FIFA Regulations. So, Diarra claimed, the transfer system obstructed his chances of finding new employment. This, he also claimed, was not hypothetical. His evidence included a concrete (and remarkably convenient) offer from Charleroi which was stated to be subject to that club not being liable under the FIFA Regulations – a proviso which FIFA refused to accept. So Diarra’s case was that he had been treated by FIFA in breach of EU law – that the transfer system operated as an obstacle to his free movement in violation of Article 45 TFEU and as an anti-competitive practice incompatible with Article 101 TFEU.

 

 

The structure of the ruling

 

Much of the Diarra ruling is entirely familiar and unsurprising to an EU internal market lawyer.

 

An obstacle to inter-State trade within the meaning of Article 45 TFEU (on the free movement of workers) was found. FIFA’s rules, the Court concluded, were liable to obstruct football players resident or working in their Member State of origin who wish to work instead for a new club established in the territory of another Member State by unilaterally terminating their employment contract.

 

Similarly the presence of the key ingredients of Article 101 TFEU (on competition law cartels) were quickly ticked off – FIFA falls within the concept of an undertaking or association of undertakings, its rules were a 'decision by an association of undertakings', and the matter affected trade between Member States.

 

The sports-specific elements in the ruling are also no surprise. The Court follows the model of its December 2023 ruling in the European Superleague case (Case C-333/21), which is cited on 35 different occasions, and this is plainly now the established model for the several cases concerning the regulation of sport which are pending before it. So the Court repeats its (silly and plain wrong) observation that certain specific rules such as those relating to the exclusion of foreign players from the composition of teams participating in competitions between national teams or to the setting of the ranking criteria used to select athletes participating in competitions which were adopted exclusively for reasons of a non-economic nature and relate to matters relating solely to sport as such must be regarded as being unrelated to any economic activity, and so untouched by EU law. But no harm is done because in Diarra the Court quickly dismisses the notion that the transfer system is ‘unrelated to any economic activity’, just as in the Superleague case it had correctly refused to accept that UEFA’s rules on prior approval of new competitions were extraneous to economic activity – and just as it should also appreciate that rules on the composition of national teams and ranking criteria have direct economic impact. EU law applies – the key issue is not using some spurious ‘non-economic’ label to exclude EU law but rather how EU law applies to practices with both sporting and economic motivations and effects.

 

Paragraphs 124-133 address ‘The concept of conduct having as its “object” or “effect” the harm to competition’. Nothing here will surprise anyone familiar with Superleague. If conduct is found to have an anti-competitive object, it is not necessary to examine its effect on competition; the concept of anticompetitive 'object' must be interpreted strictly; it catches only practices which reveal a sufficient degree of harm to competition for it to be possible to consider that an examination of their effects is not necessary (and some such practices are itemised); subjective intention is not decisive; one must examine the content, the economic and legal context and the aims. Familiar fare from Superleague. Moreover, and confirming the revolutionary turn taken by the Court in Superleague, a practice may be excluded from the scope of Article 101(1) where justified by the pursuit of, and necessary to achieve, legitimate objectives in the public interest – but only where the practice exerts an anti-competitive effect, not where it pursues an anti-competitive object. In the latter case only Article 101(3) may save the practice (paras 149-152). The decision in Meca-Medina (Case C-519/04P), which envisaged (in short) a public interest/ legitimate objective exclusion from the scope of Article 101(1) irrespective of whether the challenged practice was a restriction on competition by object or by effect, is banished – so much so that the case is not even cited in Diarra.

 

 

The incompatibility of the challenged transfer system with EU law

 

The flaws in the transfer system, on paper and in practice, are brutally listed by the Court. This leads it to the finding that they violate both Article 45 and Article 101.

 

The Court does not deny that FIFA has a legitimate role a regulator. In interpreting Article 45 it notes that the rules may be appropriate as a means to achieve the objective of ensuring the regularity of club football competitions and by contributing to maintaining a certain degree of stability in the membership of the football clubs likely to participate in those competitions (para 103). In similar vein, in examining Article 101, it refers to the conditions under which professional football clubs may compose the teams participating in such competitions and those in which the players themselves may take part in them (para 143). It may be legitimate for FIFA to seek to ensure the stability of the composition of the squads of players during a given season, for example by prohibiting – as the FIFA Regulations do - the unilateral termination of employment contracts during the season (para 144).

 

But the Court’s detailed assessment is damning.

 

Paragraphs 103-113 deal with compliance with the principle of proportionality in the interpretation of Article 45. The Court does not mince its words. The rules appear to go in several respects beyond, and in some cases far beyond, what is necessary to attain their objectives. They apply to players who have a relatively short career and therefore the impact with typically be great. Compensation is payable by the player in the event of unilateral termination of the employment contract 'without just cause', but that expression is not precisely defined in the Regulations. Some criteria are, as the Court (rather gleefully, I suspect) notes is admitted even in the official FIFA commentary, almost never applied in practice, whereas others (such as the specificity of sport) have no precise definition. This leads to discretionary and unpredictable implementation. Absence of the necessary legal certainty is a central problem. Other criteria, though more objective and verifiable, seem to go far beyond what is necessary. This is especially so in relation to taking into account remuneration and costs in calculating compensation due. The criteria governing compensation – the Court notes drily – seem more attuned to preserving the financial interests of clubs than to ensure the effective organisation of sporting competitions. The ‘sporting sanction’ imposed on the new club, which operates on the basis of a presumption of incitement, appears far removed from the demands of proportionality. The same is true of the impact on the player.

 

It is a sorry list of inadequacies. And it leads the Court to conclude that the proper conduct of sporting competitions cannot provide a justification. The current transfer system violates Article 45.

 

The examination conducted pursuant to Article 101 has much in common with that presented in connection with Article 45. The analysis begins at paragraph 134. The Court notes – in line with its earlier remarks in the light of Article 45 - that the rules are general and imprecise and that they are subject to discretionary implementation which is unpredictable and difficult to control. So too they appear to allow compensation to be set at a very high and dissuasive level.

 

Paragraph 138 draws on the Opinion of Advocate General Szpunar, which itself was a savage indictment of FIFA’s rules. It declares that the transfer system acts as a general and severe restriction on competition between professional football clubs in the market for recruitment of players. The system amounts to a ‘no-poaching’ agreement between clubs which results in the artificial partitioning of national and local markets, which – crucially - is to the benefit of football clubs (para 145). This acts as a general, absolute and permanent prohibition on the unilateral recruitment of players who are already engaged, which the Court treats as a clear restriction on competition between clubs (para 146).

 

This, then, is as ruthless as it is damning. As already in its treatment of Article 45 the Court portrays the transfer system in its current iteration as a means to improve the economic position of clubs at the expense of workers. Given the negligible input into its shaping allowed to workers’ representatives, this comes as little surprise. 

 

The conclusion is therefore that the system counts as a restriction of competition by object. As such, as explained at paragraphs 149-152 and as decided in Superleague, it cannot be saved by reference to the general public interest/ legitimate objective test applied to sport in Meca-Medina, although the Court cites only Superleague and Em akaunt BG (C-438/22), not Meca-Medina. That in turn means that only Article 101(3) can save FIFA’s rules. But the Court’s treatment of Article 101(3) at paragraphs 153-157 is as brusque as it is brisk. The ultimate decision belongs with the national court, but the Court gives a strong steer that the discretionary and/or disproportionate nature of the rules and their severe restriction on cross-border competition between clubs means they cannot be regarded as indispensable or necessary to achieve economic benefit, even were any such benefit shown.

 

 

The legitimate role of FIFA

 

The Court’s ruling treats the transfer system as rotten. But there is plenty in the Court’s judgment for FIFA to be pleased about.

 

The Court’s interpretation of both Article 45 and Article 101 allows for recognition of a legitimate regulatory role performed by FIFA in adopting common rules to regulate sport, and provide some detail on how far this may reach. Paragraphs 100-103, dealing with Article 45 and paragraphs 143-144, dealing with Article 101, contain a receptivity to FIFA’s regulatory aspirations on which FIFA (and other governing bodies) are likely to rely in framing defence of their practices in future.

 

The objective of ensuring the regularity of sporting competitions constitutes a legitimate objective in the public interest which may be pursued by a governing body. Making the organisation and conduct of international competitions subject to common rules intended to guarantee the homogeneity and coordination of those competitions within an overall annual or seasonal calendar is recognised as legitimate. So too the protection of the essential role played by equal opportunities and sporting merit in the conduct of competitions organised at both European and national level; and ensuring teams compete against each other under homogeneous regulatory and technical conditions.

 

These paragraphs of the judgment also reflect specifically on how these common rules shall affect players. The Court accepts that rules are needed to regulate the composition of teams participating in competitions; that there may be rules relating to the time limits for transfers of players during the competition; that there may be rules intended to ensure the maintenance of a certain degree of stability in the squads of clubs, which also entails concern for the continuity of related contracts; rules setting deadlines for player transfers in order to avoid transfers at a late stage of the season which would damage the overall integrity of the competition. Paragraph 144 seems open to prohibiting - as the current Regulations do -the unilateral termination of employment contracts during the season or even in a given year. These interventions, the Court accepts, serve as means to contribute to the pursuit of the legitimate objective of ensuring the regularity of club football competitions.

 

So this is to recognise the need for regulation of the sport generally and regulation of the place of players within it in particular. It is to recognise the place of a governing body in doing so. Presumably these activities, then, fall within the scope of the legitimate regulatory role performed by a governing body, and they are not a practice which has the object of restricting competition. This echoes Superleague. In that ruling UEFA’s detailed procedures on prior approval were condemned as non-transparent, lacking objective criteria and discriminatory – much as FIFA’s transfer system fell apart under scrutiny in Diarra. But in Superleague the Court did not direct that the market for supply of sporting competitions shall become a free-for-all. Quite the reverse. It accepted that a prior authorisation system may be used to refuse a competition which is not based on sporting merit. It seems that the object of requiring that new competitions be open and based on sporting merit is not to restrict competition but rather ‘the pursuit of legitimate objectives, such as ensuring observance of the principles, values and rules of the game underpinning professional football’ (ESL para 176, and see analyses here and here). Superleague provides opportunities for UEFA to re-define its regulatory purposes in defence of the values of the game – provided it meets the required standards of transparency, objectivity and non-discrimination. Similarly Diarra challenges FIFA to pin down with more care how and why rules governing the consequences of unilateral termination of contract are necessary to protect the integrity of sporting competition, and to devise rules that genuinely do so.

 

 

Revising the rules

 

It seems clear that FIFA’s rules on transfers must be made less restrictive and more predictable than they are now. The difference between the status of a player out of contract and a player still in contract will need to be reduced, but I do not think it will need to be eliminated.  The Court leaves room for FIFA to adopt common rules which are necessary to sustain the integrity and regularity of sporting competition. It seems clear from paragraphs 100-103, dealing with Article 45, and paragraphs 143-144, dealing with Article 101, that the Court is not condemning the very idea that sport needs common rules, operating independently of local contract and labour law, which are designed to protect the sport’s functioning and which may have an impact on a player who commits a unilateral breach of contract. The transfer window will survive, even though it plainly exerts some deterrent effect on clubs’ willingness to act in the market for players. I think it remains open to FIFA to devise a system that will maintain some degree of control over the eligibility of the player who commits a unilateral breach of contract. I think FIFA could provide that a player will not be able to quit one club and insist on being available to play for a new club immediately, even if local law permitted that. How long would the player have to wait? – well, that remains to be decided as the FIFA rules come to be revised. In this sense footballers will still not be treated in exactly the same way as plumbers, sausage-makers and University teachers – they will be subject to special rules applied within their industry in addition to applicable local contract and labour law. In some parts of the judgment, especially paragraph 145, the Court seems to assume that clubs can be adequately protected from the harm flowing from a breach of contract through the application of contract and employment law, and that may be so, but there is also the wider interest in the integrity of the sporting competition to take into account. It would be damaging to sporting integrity if the local law entitled the player immediately to take up employment with a new club. It would be especially damaging in a transnational competition if different laws applied in different states, as they doubtless would. So there must be room also for FIFA, as the transnational regulator of the sport, to address the phenomenon of unilateral breach of contract. But – how? There is a tension – when does action taken against a player who has committed a unilateral breach of contract cross the line from a (lawful) scheme designed to protect the integrity of sporting competition to an (unlawful) attempt to use regulatory power to extract advantage to the clubs at the expense of the player? FIFA’s job will be to show when and why such rules are needed given the special demands of sporting competition. None of this is easy, and it will take time, but paragraphs 100-103 and 143-144 of Diarra are a goldmine for FIFA.

 

A major objection which runs through the ruling is directed at the discretionary case-by-case evaluation of the consequences of unilateral breach of contract. The Court in Diarra notes that a system, if shown to be justified and proportionate, may be supported by sanctions but only on condition that they are set according to transparent, objective, non-discriminatory and proportionate criteria and also they shall be subject to review (para 111), which is a requirement which has close thematic links with the Court’s treatment of UEFA’s rules on prior approval in Superleague. FIFA’s rules on transfers need to be made clearer. Probably it is required that it be possible to predict in advance what would be the consequence of a unilateral breach of contract. That, though, will be tricky if the individual circumstances of each case need to be taken into account, as is suggested by the Court in paragraphs 110, 111, 112, and 137. I am not suggesting FIFA’s re-design of its rules will be easy.

 

The Diarra ruling does not require that a renegotiation of the transfer system shall involve a formal role for player unions, but a strong theme in the ruling is that FIFA has presided over a system which is of huge advantage to some stakeholders and operates to the detriment of others. The Court is not shy of commenting on how the system works very well for clubs as employers (paras 107, 145). Re-negotiation of the transfer system through a process which gives thorough and sincere respect to the voice of the workers would increase the likelihood that a revised version will be compatible with EU law. More generally the Court will have performed a great service if this ruling triggers a deeper reform of governance in sport so that all affected interests – players, even fans - enjoy a louder voice in decision-making than occurs right now. Perhaps FIFA will do this; perhaps, if not, the EU will be tempted to adopt legislation mandating improvement in the standard of governance in sport in general or football in particular. I am aware how naïve that may sound.

 

Diarra summarised? Sport is special. Just look at paragraphs 100-103 and 143-144. But sport is not as special as special as the governing body claims, and the particular practices at stake have been found to violate EU law, and will require reform in the shadow of EU law. In that Diarra is in perfect alignment with Bosman and Superleague.

Setting Gender-Based Asylum Straight: The Court of Justice’s Landing Point

 

 

Salvo Nicolosi and Türkan Ertuna Lagrand, University of Utrecht

Photo credit: USAID, via Wikimedia Commons

 

Just a couple of weeks after the Taliban regime in Afghanistan announced a new decree prohibiting women from being heard when speaking outside their homes, on 4 October, the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases of AH and FN (C‑608/22 and C‑609/22). The ruling constitutes the landing point of a recent stream of case law through which the Court has developed a gender-sensitive approach to refugee protection. In this regard, it is worth recalling that in WS (C-621/21), the Court recognised that women in a country can be considered ‘a particular social group’, while in K, L (C-646/21), it emphasised the importance of gender equality in defining such group. In AH and FN, instead, the Court addressed the issue of whether women subjected to a series of restrictive, state-imposed or state-supported measures, solely based on their gender, could be granted refugee status without the need for an individual assessment of their personal circumstances.

This case law is of particular importance not only because, as recently highlighted by scholars, judgments of the Court of Justice addressing gender-related elements of asylum cases are scarce, but also for the impact that the progressive stance of the Court could have on national authorities and more broadly the development of international refugee law with reference to gender-based asylum claims. After a brief account of the facts of the case, this short blog post reviews the Court’s reasoning in an attempt to explain to what extent the Court has expanded substantially and procedurally the scope of international protection for women who are victims of systematic discrimination in their country of origin. 

The Factual and Procedural Background

AH and FN are two Afghan nationals who have applied for international protection in Austria. The Federal Office for Immigration and Asylum refused to recognise their refugee status, but granted the applicants subsidiary protection on the ground that they would face economic and social difficulties if they returned to Afghanistan. The applicants unsuccessfully appealed to the Federal Administrative Court of Austria, claiming first that they had adopted Western values and a Western-inspired lifestyle, and second, that after the Taliban regime came to power in 2021, women in Afghanistan have faced widespread persecution. Accordingly, the applicants appealed before the High Administrative Court arguing once more that the situation of women under the Taliban regime alone justified the recognition of refugee status. The High Administrative Court thus decided to refer two questions to the CJEU. The first question concerned the substantial aspect of whether the accumulation of the measures taken by the Taliban regime in respect of women is sufficiently serious to be classified as an ‘act of persecution’ within the meaning of Article 9(1)(b) of the Qualification Directive 2011/95. The second question, more procedurally, concerned whether an Afghan woman may be granted refugee status without an individual assessment of her situation being carried out, despite the fact that Article 4(3) of the Qualification Directive underlines that ‘the assessment of an application for international protection is to be carried out on an individual basis.’   

The Added Value of the Court’s Reasoning

The Court’s judgment in AH and FN followed the insightful Opinion of Advocate General Richard de la Tour, which we discussed in a previous post, as well as the previous rulings, which we also discussed here and here. Based on these judicial precedents, the Court’s reasoning provides an important interpretation of EU asylum law, particularly regarding the concept of systematic discrimination, as well as the procedural requirement of individual assessment.

Systematic Discrimination

As is known, the concept of ‘discrimination’ is of paramount importance to determine the existence of persecution to seek recognition as a refugee. However, not all discrimination amounts to persecution. In this regard, the Court follows a helpful explicative approach that will offer clear guidance to national authorities while implementing the relevant EU asylum rules. In its reasoning, the Court offers a nuanced interpretation of Article 9(1) of the Qualification Directive, distinguishing between discriminatory acts that, on their own, qualify as ‘acts of persecution’ under Article 9(1)(a), and those which, when considered cumulatively, meet the threshold of ‘acts of persecution’ under Article 9(1)(b).

To this aim, the Court indicates as examples of the first category of discriminatory acts measures such as forced marriages - which the Court compares to a form of slavery prohibited under Article 4 of the ECHR - or the lack of protection against gender-based violence and domestic violence - which the Court defines as a form of inhuman and degrading treatment prohibited by Article 3 of the ECHR (paragraph 43). In the second category of discriminatory acts the Court includes measures against women that restrict access to healthcare, political life and education and the exercise of professional or sporting activity, restrict freedom of movement or infringe the freedom to choose one’s clothing (paragraph 44).

In line with the Advocate General’s Opinion, the Court affirmed that while discriminatory measures against women in this second category may not individually qualify as persecution, their combined and systematic application does. Thus, when considered collectively, these measures reach the severity necessary to be classified as acts of persecution under Article 9(1)(b). From this perspective, the Court promotes the integration into EU asylum law of the notion of systematic discrimination. This notion is particularly supported by the Court’s view that those measures, as also stressed by the Advocate General, reflect the establishment of a social structure based on a regime of segregation and oppression in which women are excluded from civil society and deprived of the right to lead a dignified daily life as guaranteed by Article 1 of the Charter of Fundamental Rights of the EU (paragraph 46).

Individual Assessment 

Regarding the individual assessment, the Court’s reasoning is especially progressive because, following the suggestion of the Advocate General, it allows a gender-sensitive interpretation of Article 3 of the Qualification Directive, according to which Member States may adopt more favourable standards, including by easing the conditions for granting refugee status (paragraph 55). From this perspective, the Court essentially showed sensitiveness about an emerging national practice resulting in the recognition of women from Afghanistan as refugees without further examination of the individual situation.

As we previously noted,  Sweden announced in December 2022 that any asylum-seeking woman or girl from Afghanistan should be recognised as a refugee. Similarly, in Denmark, as of 30 January 2023 all women and girls from Afghanistan have been granted asylum solely because of their gender, while the Finnish Immigration Service announced in early 2023 that ‘all Afghan women and girls are granted refugee status.’ Domestic practices across Europe remain, however, inconsistent. For instance, the Federal Administrative Tribunal of Switzerland recently ruled that the collective persecution of women and girls cannot be presumed solely based on gender and that Afghan women do not face collective persecution giving rise to automatic recognition of refugee status. In this context, the Court’s judgment in AH and FN plays a crucial role in harmonising domestic practices within the EU, particularly regarding the recognition of refugee status for women who are victims of systematic persecution in their country of origin.

The novelty of the Court’s ruling thus lies in the departure from a settled case law establishing, based on Article 4 of the Qualification Directive, that ‘every decision on whether to grant refugee status or subsidiary protection status must be based on an individual assessment.’ Such a departure is, nonetheless, operated by the Court through an appropriate systemic interpretation of EU asylum rules in light of international human rights law. This is confirmed by the Court’s strong reliance on the UNHCR Statement issued on 25 May 2023 in the context of these preliminary ruling proceedings, which emphasised the need for protection due to the persecutory measures imposed by the de facto authorities in Afghanistan, specifically targeting women and girls based on their gender. Additionally, the Court’s references to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further underscore the importance of these international treaties, which the Court recognises as ‘relevant treaties’ within the framework of Article 78(1) TFEU.

Concluding remarks

In this last episode of a series of developments towards a more gender-sensitive EU asylum law, the Court’s reasoning is particularly noteworthy for its significant broadening of protection standards under EU law. Notably, the Court emphasised that country of origin information may suffice as a basis for asylum determinations when discriminatory practices against women reach a point where they are effectively excluded from society and deprived of their right to a dignified life. In such cases, the Court considered it unnecessary to establish a specific and immediate risk of persecution for individual applicants (paragraph 57), underscoring a shift towards a more flexible and context-sensitive approach. This approach promises further progress in a wider spectrum of asylum claims where the applicant’s statements are not supported by evidence about their personal situation, which is often observed in applications based on sexual orientation and gender identity.

In sum, the Court’s case law has confirmed that women in a country can constitute a ‘particular social group’ that systematic persecution can arise from the cumulative impact of state-imposed measures infringing upon women’s fundamental rights and that, in such cases, no individual assessment of the applicant’s circumstances is required. By expanding refugee protection for women facing gender-based persecution, the Court not only offers significant guidance to national authorities but also contributes to the progressive evolution of international refugee law. Its approach underscores the need to integrate fundamental human rights principles, such as equality between women and men, as already emphasised in K, L (C-646/21), to ensure that women subjected to systematic oppression receive the protection they need.

It now remains for national authorities to apply the Court’s approach and ensure consistent protection across the EU for women fleeing the Taliban regime.

So long, no thanks to all the fash: review of Character Limit: How Elon Musk Destroyed Twitter, by Kate Conger and Ryan Mac

Professor Steve Peers, Royal Holloway University of London

Photo credit: mikemacmarketing, image via vpnsrus

 

Full disclosure first: After exactly ten and a half years, I stopped posting on X (formerly Twitter) on August 10, 2024. I could not accept the owner’s view that those encouraging race riots in Britain online should not be punished, his promotion of those who held such views, or his racist memes about the British justice system that sought to bring them to account. I was not alone: X lost 30% of its UK users in the last year, and 20% of its US users. How did the supposed ‘global public square’ end up in this position?

The answer is obviously the owner, Elon Musk; and the new book by Kate Conger and Ryan Mac, Character Limit, recounts the story in detail. They divide the book into three acts. In Act One, dominated by former boss Jack Dorsey – depicted here as a diffident dude phoning in his governance from tropical islands – the story is retold until Musk makes his bid for Twitter. Act Two recounts the process of that bid, culminating in his purchase of the company. Act Three covers the subsequent developments: the frantic cost cutting, the frenzied management style, the fast-disappearing advertisers. The book ends in late 2023, with a short epilogue from early 2024 in which the authors astutely note that Musk has replaced Trump on the platform – in effect taking his place as Twitter’s main character. Musk’s personality – a fragile, petty, vicious, paranoid, narcissistic man-child – drives the narrative of the book. Musk’s legion of fanboys are frequently referred to, largely murmuring offstage like a Greek chorus manifesting as a Simpsons meme.

The book is highly readable – compelling the reader to turn its pages in much the same way that legal academic books don’t. It’s a highly personalised retelling of events, and one can easily imagine a Netflix version of its cinematic story – with its ending scene matching Hearst’s deathbed sled revelations, or Zuckerberg’s obsessive page refreshing, with Musk’s very public suggestion that advertisers “go fuck yourself”.

There’s a detailed account of sources, but in the journalistic tradition some of them are off the record interviews. One thing this academic would have liked to have seen would have been some broader analysis of why things developed as they did: was this all an inevitable consequence of the political and social media dynamics of the last few years, or an example of the (not so) great man theory of history?

If the latter, what explains Musk’s behaviour exactly? Drug use is mentioned – in a passage appearing so heavily lawyered that it has its own sharp and useless look about it. Nevertheless, the reader will notice Musk’s obvious extreme mood swings and erratic behaviour. At first, the prospect of saving Twitter financially may be have been taken seriously: the authors usefully remind the reader that Twitter often lost money even before Musk’s takeover (it also had controversies about hate speech already, and the previous management was planning to cut staff before Musk did). But that motivation is hard to take seriously for long, as advertisers (Twitter’s main source of income) started fleeing from the outset, with no lessons learned from their exit. Rather, it seems that the main incentive was Musk’s personal obsession with Twitter, also mentioned at several points; the political objectives that many have suggested are not much explored.

Having said that, this is a very readable book, for those interested in the fate of this well-known social network over the last decade. And one striking feature for this reader is the role of the law in all this.

It’s obvious throughout that Musk cares nothing, and knows less, about the law; he shares these traits with such luminaries as Donald Trump, Boris Johnson, and Dominic Cummings. Although he has an early victory when a jury inexplicably clears him of defaming a critic of his Thai cave rescue attempt as a ‘pedo’, other litigation and regulatory struggles are a constant theme. Musk is only compelled to complete his purchase of Twitter due to litigation brought by its board (bound, as the authors frequently point out, by their fiduciary duty to shareholders) to enforce the deal Musk signed without undertaking prior due diligence. Compliance with an FTC consent order regarding privacy is an ongoing issue. Massive staff cuts lead to litigation over employment law and executive compensation. Twitter stops paying Thorn – a specialist in detecting online child abuse material. Conflict with a Brazilian judge over Twitter’s refusal to take down tweets backing Bolsonaro’s coup attempt leads to well-known consequences (although they occur after the book’s finale). Refusal to pay rent sparks legal challenges worldwide. And having cancelled the cleaners and crammed staff into less space in Twitter’s headquarters to save on office costs, the washrooms are soon overused. As cockroaches scuttle from the drains, desperate staff bring toilet paper from home or flee to nearby coffee shop loos to avoid those in Twitter offices. Cory Doctorow famously developed a thesis about the ‘enshittification’ of online businesses; he probably never expected it to be quite so literal.

I think it’s possible that future brushes with the law will concern in particular the EU’s Digital Services Act (DSA) – which, in a remarkable coincidence, was published in the EU’s Official Journal on the same day that Musk completed his takeover of Twitter. X is already the subject of the first preliminary findings of a breach of the Act on some issues, and investigations into further issues – including illegal content, the one thing that could get X suspended in the EU – are ongoing. I wonder if the risk assessments required by the Act should take specific account of the personal behaviour of the owner of a very large online platform – given Musk’s direct role in spreading disinformation and the negative effect of his posts on civic discourse, electoral process and gender-based violence. Recently, Musk threatened to give Taylor Swift a baby; but regulators gonna regulate.

A particular issue throughout the book – and an implied obligation under the DSA – is content moderation. It raises a series of inherent contradictions. Reflecting the sometimes conflicting human rights of freedom of expression and equality, the DSA requires very large online platforms to ensure free speech while considering the need to limit it. As for users, the book makes clear that content moderation repels free speech advocates while attracting opponents of hate speech; it costs money but its absence loses revenue, as advertisers are alarmed to see their ads appearing next to Nazis. But it is also clear from the book that Musk’s supposed free speech fundamentalism is hypocritical, as he bans and fires critics while acceding to censorship demands of the Indian government. As so often with authoritarians, there is an in-group which the law protects but does not bind – and an out-group which it binds but does not protect.

One final thought about the consequences of unlimited speech, returning to the reason why I stopped posting on the platform. When defending the ‘rights’ of those encouraging race riots in Britain, Musk and his fans compared those supporting limits on such speech to communists and Nazis. Let’s put this in historical context. After I flew to Vienna for a holiday after departing X, I visited the Sigmund Freud museum and was struck by the fact that his four sisters, staying behind in Vienna after he fled to London, all died in 1942-3. Their deaths were not caused by those who tried to censor Nazis, but by the Nazis themselves. And the postwar allies were not confused about this: Julius Streicher was tried, convicted and executed at Nuremberg for publishing the extremely anti-semitic Der Sturmer. Incitement played a role in the Holocaust. Words have consequences; and the real extremists are those who demand that the advocacy of hatred and violence should not be effectively limited.

Bringing a claim of compensation for harm suffered as a result of alleged psychological harassment by the Head of Mission and his Deputy before the EU Courts: Montanari v Eucap Sahel Niger (Case T-371/22)

 

 

 

Antje Kunst*

* Antje Kunst is an international lawyer and barrister of a UK based Chambers, specialised in EU and international public law, human rights and litigation. She is admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters including in staff disputes with EU missions and agencies before the EU Courts. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.

Photo credit: European Commission, via Wikimedia Commons

 

Introduction

On 17 July 2024 in Montanari v Eucap Sahel Niger (Case T-371/22)** the General Court ruled it has jurisdiction regarding a claim for compensation brought by a former staff seconded by a member state to Eucap Sahel Niger, an EU Mission established under the Common Foreign Security Policy (CFSP). This ruling on jurisdiction is  based on an important Grand Chamber judgment H v Council et al,  Case C- 455/14 ECLI:EU:C:2016:569.

Related to the substance of the case the General Court applied by analogy provisions of the EU Staff Regulations  to the dispute. EU Staff Regulations are not applicable to EU staff seconded by a member state to an EU Mission. Applying the EU Staff Regulations in analogy was based on the principle of equal treatment. In this respect the General Court followed its own case law, as established in H v Council in Case T-271/10 RENV II ECLI:EU:T:2020:548.

There is hardly any case law by the General Court regarding actions against EU missions by seconded staff from member states. Consequently, its judgment in Montanari holds significant importance, considering also that the majority of personnel in EU missions are seconded by member states.

The Montanari case represents yet another instance where the General Court had to address multiple jurisdictional and admissibility issues, despite well-established case law on certain aspects. Nonetheless, the General Court's detailed response to the defendant's plea of lack of jurisdiction and the pleas of inadmissibility will undoubtedly be useful for future similar cases brought by seconded staff to EU missions.

The clarifications by the General Court will hopefully dissuade EU missions from raising such pleas in the future, allowing the Court to focus its judicial review on substantive matters, as it regularly does in EU civil service cases brought under Article 270 TFEU. Ultimately, this would allow the EU judiciary to deliver judgments in these types of cases more swiftly, which are EU civil service type staff disputes, resulting in faster dispute resolution for the parties and reduced litigation costs for the applicants.

The Montanari case offers valuable insights into how the General Court will address the merits of similar cases in the future, including which set of rules it will apply and how it will interpret those rules in relation to seconded staff. This may include staff’s fundamental rights under the Charter, the Code of Conduct applicable to all staff serving in EU missions, seconded or contracted, the operational plan of EU missions (‘OPLAN’) and provisions of the EU Staff Regulations (see the reference to these rules in para. 209 of the Judgment).

Further the General Court’s judgment makes clear that it will apply the case-law specific to the EU civil service having similar staff disputes to staff seconded to EU Missions (see para. 224 of the Judgment).

It is highly desirable for the General Court's judicial review process to eventually align closely with its review of cases brought by civil service litigation pursuant to Article 270 TFEU. Such alignment would ensure consistency, predictability, and fairness in the adjudication of disputes involving staff seconded by member states, thereby strengthening the legal framework governing EU missions.

The unsuccessful plea of lack of jurisdiction – no complaint relating to the secondment

Eucap Sahel Niger argued that the General Court does not have jurisdiction to hear the action because the applicant performed the duties of political adviser within the Mission as an expert seconded by the Italian Ministry of Foreign Affairs, in accordance with Article 7(2) of Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger. This provision foresees that it is for the seconding Member State to respond to any complaint relating to the secondment to an EU Mission, and for complainants to bring any action against the Member State. But the applicant’s complaint did not relate to his secondment as such – so the position was similar to that of H, the applicant in the Grand Chamber case H v Council et al, who was a former seconded member of staff of the EU Police Mission in Bosnia who was complaining about her subsequent redeployment after being seconded.

The applicant’s complaint in the case at hand was about alleged psychological harassment by the Mission’s leadership, which is a matter for the EU Courts. The problem was that for staff seconded to EU missions, there was no legal basis for the EU Courts to review staff management acts of EU missions – like Article 270 TFEU, which would otherwise apply to staff under the EU Staff Regulations.

The Grand Chamber Judgment in H v Council et al recognized that H, a prosecutor and her colleagues seconded to EU missions, faced a gap of judicial protection. The Court of Justice rightly decided to step in to close this gap to ensure a “complete system of legal remedies and procedures”. It determined that it has jurisdiction for actions by seconded staff challenging acts of EU missions pursuant to Article 263 TFEU and seeking compensation based on Article 268 and 340 TFEU from them, taking into account its role under Article 19(1) TEU to ensure that ‘the law is observed’ and the fundamental right of effective judicial protection pursuant to Article 47 of the Charter of Fundamental Rights. This guaranteed that the acts of EU missions involving seconded staff do not escape judicial review and ensuring compliance with EU law.

After 2016 no seconded staff to an EU Mission has ever brought a complaint based on the Grand Chamber’s important ruling, Mr. Montanari is the first applicant. However, the landmark ruling of the Grand Chamber has been applied by analogy in subsequent cases (e.g., SatCen v KF, Case C‑14/19 P, ECLI:EU:C:2020:492 and discussed extensively in literature as for example here and here.

In the case at hand the General Court delved into the Mission’s jurisdictional arguments but dismissed them based on the H v Council et al judgment, accepting jurisdiction pursuant to Articles 263, and 268 and 340 TFEU, ‘taking into account Article 19(1) TEU and Article 47 of the Charter’ (see paras. 40-55 of the  Judgment).

Furthermore, it dismissed the Mission’s position that the national courts, here the Italian courts, have jurisdiction.  It agreed with the applicant that his claim before the EU Court was not about his secondment by the Italian Government but about alleged misconduct by the EU mission, alleged psychological harassment by the Mission’s leadership. That is why as in H’s case national courts do not have jurisdiction.

Legal interest for annulment of rejection of request for compensation

The applicant sought under Articles 268 and 340 TFEU compensation for alleged damage resulting from psychological harassment and violations of the right to good administration and the duty to have regard to the welfare of officials.  Equally he sought the annulment of the Mission's decision rejecting his claim for compensation based on Article 263 TFEU.

The General Court clarified, based on its case law, that claims seeking annulment of the refusal of an EU body to grant compensation which a claimant also asserts under Articles 268 TFEU and 340 TFEU, must be dismissed as inadmissible. That is why the Court held that the applicant had not justified a legal interest in seeking, in addition to his claims for compensation, the annulment of the Mission's decision rejecting his claim for compensation. Accordingly, the application for annulment was dismissed as inadmissible. (paras. 58-66 of the Judgment)

Unsuccessful plea of inadmissibility that certain acts are not attributable to the Mission

Mr. Montanari alleged not only that the EU Mission took decisions in relation to him which constituted psychological harassment, but also that the Mission's Civilian Operations Commander (see explanations on his or her role here) had breached the right to good administration and the duty to have regard for the welfare of officials when dealing with his reports of psychological harassment which he had made against the Head and Deputy Head of Mission. The Mission’s response to this was that Mr. Montanari had complained of actions or inactions of the Civil Operations Commander which were not attributable to it.

The General Court rejected this and found that the applicant was right to bring his action for damages against the Mission also regarding the failings of the Civilian Operations Commander.

This is a correct finding as the Civilian Operations Commander exercises command and control of the Mission at the strategic level, and he ensures at theatre level the proper and effective implementation of the Council's decisions and those of the Political and Security Committee (PSC), see also here.

Additionally, the Code of Conduct applicable to seconded staff across EU missions establishes a specific complaint mechanism directed to the Civilian Operations Commander for allegations of misconduct against a Head of Mission and their Deputy. In this context, it can be said that the actions or inactions of the Civilian Operations Commander effectively represent the actions and inactions of the Mission itself. (see paras. 67-87 of the Judgment)

Applicability of EU Staff Regulations to disputes between secondees and EU missions

After having concluded that the claim for compensation was admissible, the General Court went on to review in an elaborate manner the merits of the claim, examining in detail the applicant’s allegations of psychological harassment and the failings of the mission in this regard. (see paras.111-321 of the Judgement)

The General Court emphasized importantly that staff seconded to EU Missions by Member States, although not governed by the EU Staff Regulations pursuant to Article 270 TFEU, are nonetheless subject to the same rules as those applicable to staff seconded by the EU institutions, i.e. the EU Staff Regulations. (para. 117 of the Judgment).  It rightly ruled that the applicant must benefit from the same level and the same rules of protection against psychological harassment.

‘By virtue of the principle of equal treatment, the General Court is required to apply to the applicant's situation, by analogy, the provisions of the Staff Regulations relating to psychological harassment and the functional protection of officials and temporary or contract staff and the case-law based on those provisions’ (Para. 125 of the Judgement)

Also for the duty to have regard for the welfare of officials  the General Court reiterated that

‘the principle of equal treatment requires application by analogy to the case of national staff seconded to a body or agency such as a Mission of certain provisions of the Staff Regulations and the case-law specific to the matter of the European Union civil service, where such staff are placed in a situation comparable to that of staff subject to the Staff Regulations and the difference in situation between the two cannot objectively justify the former not benefiting from the same level and rules of protection as the latter when carrying out their duties in the theatre of operations.’ (Para. 224 of the Judgement)

Following a thorough examination of the facts, reviewing the alleged infringements of Montanari’s rights as set out inter alia in the EU Staff Regulations and the EU Charter (e.g., related to psychological harassment), taking into account the OPLAN and the Code of Conduct in light of its settled case law on EU staff cases, the General Court partially ruled in favour of the applicant. It determined the matter as it would have done in a typical EU civil service case, awarding him €6,000 for non-material damages.

Conclusion

The Montanari Judgment serves as a critical reminder to the highest levels of the European Union (EU) Missions, including the Civilian Operations Commander that there is a court before they can, and should, be held accountable for any actions or inactions that contravene EU law. It highlights the EU judiciary's role in ensuring compliance and accountability within EU Missions.

Moreover, the Montanari Judgment opens the door for the potential judicial review of any staff misconduct by or against a seconded staff member as set out in the Code of Conduct whilst in the performance of their duties in the ‘theatre of operations’. Such case law ensures that EU Missions and their staff operate within the bounds of EU law, reinforcing the principles of transparency and accountability that are fundamental to the effective functioning of EU missions.

**Citations of findings of the General Court are unofficial translations.