The Iraq war and EU asylum law: the CJEU’s answers are blowin’ in the wind

Steve Peers

Nearly twelve years since the conflict began, the Iraq war is still controversial, with many believing that Tony Blair and George W. Bush launched an ‘illegal war’. For these critics, the only satisfying result would be the trial of Bush and Blair on war crimes charges. I think this will happen one day – on the condition that the jury consists of flying pigs. (Perhaps they flew off with the mythical weapons of mass destruction).

For now, then, in light of the mysterious death of a scientist and the dubious delay in a planned investigation of the war, critics of the conflict have to litigate these issues indirectly. There is a link to EU law here – as set out in yesterday’s Shepherd judgment of the CJEU. Unfortunately that judgment is highly problematic, not because the Court avoids the key issue of the war’s legality, but because of its unconvincing interpretation of some key issues concerning the status of deserters in EU asylum law.

Background

The Geneva Convention on refugee status defines a refugee as a person outside his or her country of origin, who is unwilling or unable to return to that country due to a well-founded fear of persecution on grounds of race, religion, nationality, particular social group or political opinion. But it excludes refugee status from those who have committed particularly heinous acts, including war crimes.

These rules are set out again, and further elaborated, in the EU’s Qualification Directive. In particular, there is a further definition of the concept of ‘persecution’, which (among other things) includes legal or policing measures, or prosecution or punishment, which is ‘disproportionate or discriminatory’ (the ‘unfair punishment’ rule), and ‘prosecution or punishment for refusal to perform military service in a conflict’, if ‘performing military service would include crimes or acts falling under the exclusion clauses’ (the ‘military service’ provision).

The Shepherd case concerns an American soldier who developed doubts about the legitimacy of the Iraq war. Although he was not in combat, but rather carried out maintenance work on helicopters, he feared that he was contributing to the commission of war crimes. So he deserted from the US army, but expected that he would be prosecuted in the USA as a result. To avoid this, he applied for asylum in Germany, and the German courts sent questions to the CJEU to clarify the interpretation of the Qualification Directive.

Judgment

The Court began by confirming that it would only interpret the rules in the Directive on the concept of persecution, although the Advocate-General’s opinion had also examined the rules on the grounds of persecution and exclusion. As a result, the Court’s judgment says nothing (for instance) about the definition of ‘war crimes’.

Next, the Court made four main points about the interpretation of the ‘military service’ provision. First of all, the definition of ‘military service’ included support staff, and the circumstances surrounding enlistment in the military were irrelevant. Implicitly it doesn’t matter whether the soldier was conscripted or volunteered. However, the Court stated that being part of the military was a ‘necessary but not sufficient’ condition for the rule to apply.

Secondly, the Court elaborated upon the conditions for applying the provision, setting out four elements to be considered: there must be a relationship with an actual conflict; the rule can apply even to indirect participation in a conflict, if the soldier’s tasks could ‘sufficiently directly and reasonably plausibly, lead them to participate in war crimes’ (the possibility of prosecution before the International Criminal Court being irrelevant); there must be a likelihood of war crimes being committed in future (again, the possible role of the International Criminal Court is irrelevant); and the past conduct of the unit is not an automatic indicator that war crimes will be committed in future. Overall, the test is whether ‘there is a body of evidence which alone is capable of establishing’ whether it is ‘credible’ that war crimes will be committed.

Thirdly, the Court examined the context of the conflict in question, addressing three issues. If there was a Security Council resolution authorising the conflict, there was ‘in principle, every guarantee’ that war crimes will not be committed, although this was not an absolute rule. This also applied to an ‘operation which gives rise to an international consensus’. And if national law of the country of origin provided for the ‘possibility’ of prosecution of war crimes, then it was ‘implausible’ that such crimes will be committed. Overall, the asylum-seeker has to show that there is ‘sufficient plausibility’ that his unit is ‘highly likely’ to commit war crimes.

Fourthly, the Court looked at the soldier’s individual circumstances. Desertion has to be the only way in which he could avoid participation in war crimes, and the Court pointed out that Mr. Shepherd had enlisted and then re-enlisted in the US armed forces.

Finally, the Court interpreted the ‘the ‘unfair punishment’ rule. The starting point was that Member States are entitled to maintain an armed force, including by means of punishing soldiers who desert. A penalty of up to five years in prison was not disproportionate, in the CJEU’s view. Nor was Mr. Shepherd’s punishment discriminatory, since there was no comparator for him. And the social ostracism that might result from his desertion was legally irrelevant, since it was only a consequence of the punishment.

Comments

Let’s begin with the parts of the judgment which are fairly convincing. The Court’s definition of ‘military service’ makes sense in light of the wording of the Directive, as does its interpretation of the conditions for applying this provision.

Unfortunately, the majority of the Court’s reasoning is not as persuasive. As regards the ‘unfair punishment’ rule, the Court should have made clearer why a lengthy prison sentence is acceptable for a deserter, but not (according to prior case law) an LGBTI refugee. (The obvious answer is that an expression of human sexuality is prima facie an exercise of the human right to a private life). On discrimination, the Court’s failure to find a comparator stems from its unwillingness to look at the grounds of persecution: obviously Mr. Shepherd could claim discrimination as compared to persons in other social groups or holding other political opinions. And as for social ostracism, the Court simply asserts that such ostracism cannot be severed from the punishment for desertion. But this is not necessarily correct. However, it should be noted that the judgment leaves open the possibility that social ostracism can exist in the absence of official punishment in another case.

The Court’s reasoning on the context of military conflict is quite implausible. Why should the mere existence of a Security Council resolution amount to a ‘guarantee’ that war crimes will not be committed? In any event, this begs the enormous question as to whether the Iraq war was indeed authorised by such a resolution. This line of reasoning is inconsistent with the Court’s ruling in the Kadi line of cases that the mere existence of a Security Council process was insufficient to guarantee human rights. Many people start out as naive idealists about international law, but end up as disappointed cynics; the Court seems to have undertaken this journey the other way around.

The idea that an ‘international consensus’ could lead to the same result is baffling. Unlike a Security Council resolution, which is clearly a real thing (leaving aside the question of how to interpret one), there is no reference to ‘international consensus’ in the Directive, and the Court makes no suggestion that such a concept exists in international law. How would it even be defined? The State being invaded clearly does not participate in such a ‘consensus’, and if there were such widespread international agreement, why would it not have resulted in a Security Council resolution anyway? The only plausible explanation for this part of the judgment is that Tony Blair hacked into the Court’s computer system, integrating his beliefs about liberal intervention into the heart of EU law. Let’s hope he didn’t charge the Court his usual fee.

Nor is it convincing that the ‘possibility’ of national prosecution for war crimes is sufficient. If it were, why has the international community spent decades building an international criminal court system? The Advocate-General’s opinion gives several examples (such as My Lai) where such a possibility was clearly insufficient.

Finally, as regards the soldier’s individual circumstances, the Court failed to consider the possibility that the conduct of the war changes, that facts about war crimes come to light, or that the solider simply changes his mind. The latter possibility is clearly relevant, since public opinion hardened against the Iraq war as it went on, and the Advocate-General spells out how Mr. Shepherd came to change his own mind. But the final word on this point should go to Bob Dylan:

Yes, how many times can a man turn his head

Pretending he just doesn't see?

Yes, how many ears must one man have

Before he can hear people cry?

Yes, how many deaths will it take till he knows

That too many people have died?

The answer my friend is blowin' in the wind

The answer is blowin' in the wind.

Barnard & Peers: chapter 26

What remedies do asylum-seekers have in the Dublin system? Details of new case

Steve Peers

Here are the questions and background information in a new Dutch reference to the CJEU, the first case concerning the latest version of the EU's asylum responsibility rules (known as the 'Dublin III Regulation'). It's a rough, unofficial translation from the original. Thanks to Flip Schuller, lawyer at Prakken D'Oliveira, for this.

Preliminary questions from the court The Hague (Den Bosch)

Case number: AWB 14/12282

Brief summary of the case

The applicant applies for asylum on 04-03-2014. Based on research in the EU-VIS-system it turns out that the applicant received a visa from the French representation in Iran on the date 17-12-2013. This visa was valid from 17-12-2013 until 11-02-2014.

On 07-03-2014 the State Secretary for Security and Justice requested France to take charge of the application of the applicant. The French authorities accepted this request on 5-5-2014.

 

The State Secretary has the view that France is responsible for determining the application for international protection based on article 12(4) of Regulation 604/2013. The applicant had a visa and furthermore the French authorities accepted the take-charge request from NL. Furthermore, the State Secretary finds that the applicant did not prove that he left the territories of the EU MS since he did not provide with documents to underline his travel from France-Iran and Iran-Netherlands. He states that the submitted documents are prepared only on the request of the applicant which lead to the conclusion that these documents are not reliable (not objective evidence). Therefore the State Secretary finds it not credible that the applicant did actually leave the territory of the EU MS, even if one should have the view that the delivered documents are authentic.

The applicant declared that he made use of the visa on 18-12-2013, that he slept one night in Paris and then returned to Iran. Then he travelled on 20-02-2014 illegally from Iran, through Turkey and finally arrived in the Netherlands somewhere around 01-03-2014. The applicant declared that his passport with stamps is taken by the Sepah-e Pasdaran-e Enqelab-e and that he doesn’t have evidence to submit about his travel. The applicant emphasizes that he did not have troubles in Iran before and that the problems firstly arose on 15-02-2014.

To underline the applicant resided in Iran after being in France, he submitted the following documents:

-          A statement from his employer;

-          A statement from a physician;

-          A signed agreement on the sale of property. With regard to that the applicant states that it is dated on 10-01-2014 and that he had to sign this agreement in person.

 

The preliminary questions are:

1. What is the extent of article 27 of Regulation 604/2013 [the right to an appeal], whether or not in conjunction with consideration 19 of the Preamble of Regulation 604/2013?

Does an applicant, in a situation like this, where the applicant firstly after a claim-acceptance is confronted with the Dublin claim and the applicant thus evidence submits after the claim-acceptance which could lead to the conclusion that not the requested EU MS but the requesting EU MS is responsible for the application for international protection, and that then the requesting EU MS does not examine the submitted evidence nor submit it to the requested EU MS, based on this article (thus art. 27) has a right to an (effective) remedy against the application of the criteria for determining the EU MS responsible (mentioned in chapter III of Regulation 604/2013?

 

2. Is, in case the applicant based on the Regulation 604/2013, and also based on Regulation 343/2003, in principle doesn’t have an appeal on the incorrect application of determining the EU MS responsible when the requested EU MS has accepted the take-charge request, the view of the State Secretary for Security and Justice correct that this starting point only has an exception in family situations as mentioned in art 7 of Regulation 604/2013, or could there be other particular facts and circumstances considerable on which an applicant can appeal to an incorrect application for determining the EU MS responsible?
 

3. In case the answer on question 2 is that also apart from family-situations other circumstances could lead to the conclusion that an applicant can appeal on the basis of an incorrect application of the criteria for determining the EU MS responsible, could that be the facts and circumstances mentioned in consideration 12 of this judgment? [These are the documents mentioned in the summary of the case.]

 

Barnard & Peers: chapter 26

 

 

 

 

EU copyright law: Is the REDA report a leap forward for the parody exception?

 

By Sabine Jacques

 In mid-January, Julia Reda (Pirate Party MEP) communicated a draft of her report on the implementation of the Information Society Directive (‘InfoSoc Directive) 2001/29/EC (it’s lengthy, but a summary can be found here). Described as ‘the most progressive official EU document on copyright since the first cat picture was published on the web’, but also as being ‘surprisingly extreme’ and even being ‘inacceptable’, this report attracted widespread interest and statements of support from different digital rights organisations.

While the report rightly urges for an ever-increasing ‘internet-friendly copyright law’, the report might have gone too far in relation to parodies. Article 5.3(k) of the InfoSoc Directive currently provides the possibility for EU Member States to introduce a parody exception for the purposes of parody, pastiche and caricature to the exclusive right of reproduction in their national copyright laws (this opportunity was seized by the UK which now includes a parody exception in section 30A CDPA). This provision was interpreted by the Court of Justice of the European Union in the Deckmyn case, guiding national courts in their application of the exception to particular facts (for comments on this decision see here and the AG’s opinion see here).

At 17 on page 6 of the report, Julia Reda suggests ‘that the exception for caricature, parody and pastiche should apply regardless of the purpose of the parodic use’. Without further explanations, such a broad exception raises concerns.

The parody exception is an exception to the right-holder’s exclusive right of reproduction. As such, international treaties subject it to the application of the three-step test (Berne Convention art. 9(2), TRIPS Agreement arts. 9(1) and 13; and, WCT arts. 1(4) and 10). This test requires any exceptions in national legislation to be limited to ‘certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. The French authorities’ response appropriately expresses concerns that a parody exception applicable outside any purpose of parody is unlikely to meet the first step of ‘certain special cases’. As this requirement means that a shapeless provision exempting broad series of uses should not be tolerable and reflects the need for legislators to reconcile opposing interests.

The exception for the purpose of parody, caricature or pastiche aims to provide the possibility for parodists to copy copyrighted works in limited circumstances. The current parody exception is the result of a compromise in light of the objectives underlying the exception. The issue opposes the interests of right-holders (who are entitled to be rewarded for their creation) against the interest of the users (who need to reproduce prior works to create the new work). Removing its purpose is likely to amount to a shapeless exception rebuffed by international obligations.

Yet, La Quadrature du Net interprets Julia Reda’s proposal as: ‘to admit the parody exception for non-humorous creations’. If this is her aim, this could be achieved through the current wording of the exception for the purpose of parody.

The Court of Justice of the European Union has defined ‘parody’ through its requirements in Deckmyn. At para 20, the Court notes that a parody needs: ‘to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.

The expression of humour or mockery does not exclude the expression of criticisms. By requiring the parodist to have a humorous intent, it is suggested that a broad interpretation should prevail as to include playful, homage or serious expressions (a glimpse at French case law which knows a long history of the application of the parody exception shows evidence of serious expressions and the inclusion of satire). The limit being that the expression should refrain from being prejudicial to the person of the author or his work(s). The failure to meet this requirement enables the right-holder to enforce his or her moral rights (especially the integrity right). Additionally, where an individual is defamed, this person can bring an action under defamation law.

Also, the primary justification to the introduction of a parody exception is to facilitate the exercise of one’s freedom of expression. While freedom of expression is already considered in the current InfoSoc Directive (Recital 3 reads: ‘The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.’) and the interpretation of the parody exception in Deckmyn (at para 25), the report (recitals C and D) confirms the importance of the relationship between copyright and related rights and freedom of expression both protected under the Charter of Fundamental Rights of the European Union (respectively enshrined in article 17(2) and 11).

Yet, the concerns expressed by Julia Reda concerning the likelihood of achieving harmonisation of the exceptions throughout the EU territory under the current InfoSoc Directive (at 10) are shared. Additionally, her wish to make copyright exceptions mandatory is welcomed (at 11) and would certainly contribute to the objective of harmonisation desired.

To conclude, it must be reminded that this report is merely a draft. This one will now be handed over to the Legal Affairs Committee and to the Internal Market and Culture committees. Overall, the report makes important proposals but there is still room for improvement. Against this backdrop, care must be taken regarding the details of each provision such as for the parody exception to ensure that the impact of the exception applicable outside parody uses does not disrupt the balance desired between the interests of right-holders and parodists.

Opinion 2/13 on EU accession to the ECHR: looking for the silver lining

Catherine Barnard, Trinity College, Cambridge

Introduction

Opinion 2/13 is a judgment for lawyers, not politicians, albeit one with major political ramifications. It engages in a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), as well as key principles of EU law. This does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in (2015) 52 Common Market Law Review 1); a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to adopt a more positive reading of the Opinion. My remarks focus on three points:

·         Was there a failure to see the wood for the trees in the negotiations?

·         Was Opinion 2/13 really a case of judicial vanity?

·         What are the effects of Opinion 2/13 on relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the trees in the negotiations?

The submissions of the Member States and the AG’s Opinion focused on the content of the Draft Accession Agreement: are the various clauses of the agreement compatible with EU law? But I think the Court felt that the focus on the nuts and bolts of the DAA meant that the negotiators failed to look at the bigger picture, namely (1) that the EU is not a state; and (2) that EU law has special characteristics (the language of Article 1 of Protocol 8[1]) which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of the soft furnishings of the house – the carpets and curtains - rather than on the structural soundness of the entire edifice. But the Court was much more concerned with the edifice rather than the soft furnishings. This is why it devoted a substantial part of its Opinion (paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which it thought risked being undermined by accession to the ECHR. It identified these specific characteristics as supremacy, direct effect, conferral of powers, institutional structure[2], as well as the principle of mutual trust[3] and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of the autonomy of EU law - that is its autonomy from both the laws of the Member States and international law.[5] The Court said that the autonomy of EU law, together with its specific characteristics, were preserved by the judicial system intended to ensure consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to be considered.

Having set out its stall, the Court was, I think, trying to indicate that anything in – or about - the Accession agreement which jeopardised this core contravened EU law. Putting it another way, the discussion in paragraphs 153-177 was not put there simply to teach EU lawyers to suck EU eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider not just the points raised by the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps to explain the focus on the three substantive issues: Article 53, mutual trust and Protocol No. 16 which had featured little in the submissions and the AG’s Opinion. At first sight, it is particularly surprising that Protocol No. 16 was considered at all. It allows national courts of last resort of states signed up to the Protocol to make ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8] It was concluded after the DAA had been agreed and it has not yet been brought into force. Yet the mere existence of Protocol 16 gave the Court the opportunity to express its views on the centrality of Article 267 TFEU to the EU system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating the DAA had failed to consider this important constitutional ‘wood’, focusing too much on the ‘trees’. Addressing the concerns about the potential infringement of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the principle of mutual trust and Protocol No 16, was essential before accession could take place.

Was Opinion 2/13 a case of judicial vanity?

Critics of Opinion 2/13 argue that the Court of Justice was determined to protect its supremacy at all costs. Despite the fact that all intervening Member States, the AG (with reservations), and the Presidents’ joint communication indicated support for the DAA, the Court cussedly did the opposite. Even if this narrative is correct (which I doubt - see below), I actually think there would be some justification for the Court refusing to surrender itself so absolutely to the control of a ‘higher’ court. Compared to the US Supreme Court, it is still a teenager as a court. It continues to deal with threats to its supremacy from the Constitutional Courts of the Member States. It has, more or less, successfully held off those challenges. It certainly saw off a challenge to its supremacy from the power of the UN in Kadi I.[9] There, its identification of the autonomy of EU law was largely welcomed: David was seeing off Goliath. The situation is different now. The CJEU has now assumed Goliath-like proportions. Autonomy may now be mistaken for hubris, arrogance, disdain for its sister court. However, to the Court of Justice, subordination to a ‘higher’ court might suggest the Court is not invincible. It has always been very sensitive to this possibility.

However, I am not sure that the narrative of judicial vanity is correct. After all the Court does expressly concede that EU law - and the Court of Justice - are subjecting themselves to external review.[10] It points out that:

 It is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice, and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the control mechanisms provided for by the ECHR, particularly the ECtHR, as Article 3(6) of the draft agreement provides and as is stated in paragraph 68 of the draft explanatory report.

The Court also recognises that there is an obligation on the EU to accede to the Convention. However, I think the structure of paragraphs 160-162 is telling. The emphasis is not on the obligation to accede under Article 6(2) TEU, first sentence. Rather, the Court emphasises that accession is subject to limitations: accession must ‘not affect the Union’s competences as defined in the Treaties’ (Article 6(2) TEU, second sentence), nor must it interfere with the specific characteristics of the EU (Protocol 8, protocols being of equal value to the Treaties). As the Court put it at paragraph 164:

 For the purposes of that review, it must be noted that, as is apparent from paragraphs 160 to 162 above, the conditions to which accession is subject under the Treaties are intended, particularly, to ensure that accession does not affect the specific characteristics of the EU and EU law.

This is a subtle change in emphasis but an important one. Yes, Article 6(2), first sentence, suggests an absolute obligation to accede. However, when viewed through the lens of Protocol 8 and the second sentence of Article 6(2) TEU, the Treaty provided not an absolute obligation to accede but a conditional one.[11] I think this is the line the Court took.

What are the effects of the Opinion on relations with the ECtHR?

For proponents of the thesis of CJEU vanity, the effect of the Opinion on relations with the ECtHR is disastrous. The fact that the Opinion came out just before Christmas – not a bad time to bury bad news – might support the idea that the Court of Justice had something to hide.

Again, a closer look at the judgment might refute, at least in part, this allegation. First, at no point did the Court criticise the European Court of Human Rights or its case law; its ire seems to have been directed at the EU’s negotiating team.

Second, as Peers has helpfully digested, the Court has clearly identified areas for improvement. It has thus provided a drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items are relatively straightforward to address. Some, especially those concerning the CFSP, mutual trust,[12] Article 53 and Protocol 16, may not be. And the logistics of renegotiating the DAA in the face of a number of intransigent states both in the EU and outside, gives considerable pause for thought.

But the fact is that the Court of Justice did not close the door on EU accession to the ECHR. Leaving it ajar, yes, but not slamming the door shut completely. And the Court of Human Rights is a sensitive institution. While its first reaction might be disappointment (see the President’s remarks on the opening of the judicial year), judicial comity will lead the judiciary in both Courts to engage – probably privately – with each other.

Conclusions

A number of commentators have been tremendously critical of the Court’s decision. Their disappointment is understandable. There was so much hope associated with accession. The effect of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a body blow to the ECtHR and to (re)assert the CJEU’s own supremacy. In this case the judgment is very much a political one dressed up in lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of EU law, which it felt had not been adequately recognised in the negotiation process. In this case the judgment is very much a legal one.

But there may be a silver-lining. The Court of Justice has put down a marker that it thinks that it can ‘do’ human rights. It may now have to prove this. There may be more decisions like Abdida,[13] delivered by the Grand Chamber on the same day as Opinion 2/13 (discussed by Peers), where the Court adopts a pro-human rights line (sweetened by numerous references to the case law of the European Court of Human Rights). Politically this may be very important, not only to start the process of bridge building with the Court of Human Rights, but also to send out a message to its own (troublesome) constitutional courts. For what is sauce to the (CJEU) goose is also sauce for the gander of the national constitutional courts.

 

These remarks were first delivered to a seminar organised by CELS, Faculty of Law, University of Cambridge, 4 February 2015.

 

Barnard & Peers: chapter 9

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[1] ‘The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "European Convention") provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union's possible participation in the control bodies of the European Convention;(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’

[2] Paras. 165-6.

[3] Para. 168. See also K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, 30 Jan. 2015.

[4] Para. 169.

[5] Para. 170.

[6] Para. 174.

[7] Para. 176. See also Opinion 1/09, ECLI:EU:C:2011:123.

[8] Art. 1 says ‘Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.’

[9] Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461.

[10] Para. 182-5.

[11] For hints of that view, see Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental freedoms, May 2010, paras. 4-5

[12] See further A. Kornezow, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13) 12 CYELS 227.

[13] Case C-562/13 ECLI:EU:C:2014:2453.