Thursday, 30 November 2017

The European Citizens’ Initiative & Greek debt: An unlikely combination

Anastasia Karatzia, Lecturer in Law, University of Essex


It is not every day that we see CJEU judgments on the European and Monetary Union (EMU). A simple search on Curia with the words ‘Economic and Monetary Policy’ results in relatively few cases including a couple of seminal judgments published in the past five years, such as Pringle and Gauweiler (discussed here), which relate to measures taken for the management of the Eurozone crisis. One of the results of this search is the case of Anagnostakis v Commission, which challenges the refusal of the Commission to register Mr. Anagnostakis’ proposed European Citizens’ Initiative (ECI) ‘One million signatures for solidarity’.

Mr. Anagnostakis submitted his proposed Initiative to the Commission in July 2012. According to the text of the proposal, the objective of the Initiative was the establishment, in EU law, of a principle of ‘the state of necessity, in accordance with which, when the financial and political existence of a Member State is threatened by the servicing of abhorrent debt, the refusal to repay that debt is necessary and justifiable.’ The proposed ECI mentioned Articles 119 - 144 TFEU (the Treaty provisions on EMU) as the legal basis for its adoption. In September 2012, the Commission refused to register Mr. Anagnostakis’ proposal on the ground that the proposal did not fulfil the conditions of Article 4(2)(b) of the ECI Regulation, as it ‘fell manifestly outside the scope of the Commission’s powers to submit a proposal for the adoption of a legal act of the Union for the purpose of implementing the Treaty’.

The letter of refusal sent to the organiser stated that the Commission had examined the Treaty provisions referred to in the proposed ECI, in particular Article 136(1) TFEU ‘and all other possible legal bases’, before concluding that the proposed Initiative should be refused registration. On 11 October 2012, Mr. Anagnostakis challenged the refusal of his Initiative, claiming that the Commission could have registered the ECI on the basis of Article 122(1), Article 122(2), Article 136(1)(b) TFEU, and rules of international law. The General Court found that the Commission had not committed an error in law by refusing to register the proposal and thus dismissed the case. It also ruled that the Commission had complied with its obligation to state reasons, after examining this procedural ground on its own motion.

The applicant appealed the judgment of the General Court, and the European Court of Justice (ECJ) delivered its judgment on 12 September 2017. This commentary, which is the third in a line of posts in ‘EU Law Analysis’ on ECI-cases (see earlier comments on the TTIP/CETA and Minority Safepack cases), will focus on the ECJ’s judgment, which is the first and currently the only ECJ judgment relating to an ECI. Interestingly, the judgment was delivered by the Grand Chamber, possibly because of the novel nature of the subject matter, or (/and) because of the politically sensitive nature of the Initiative.

In addition to this first ECI judgment, the Commission’s Proposal for a new ECI Regulation, was recently published and was presented earlier this week (28 November) by the First Vice President Timmermans to the European Parliament. The commentary will conclude by briefly looking at a specific aspect of the Commission’s Proposal, namely the suggested formalisation of the partial registration of an ECI.

The judgment of the European Court of Justice in Anagnostakis

The appeal consisted of four grounds which were classified into two groups (as suggested by the Advocate-General’s opinion). The first group of arguments concerned the procedure in which the Commission made its Decision. The appellant challenged the finding of the General Court that the contested decision satisfied the Commission’s requirement to give reasons under Article 296 TFEU. The second group concerned the substance of the Decision: the appellant complained that the General Court misinterpreted Article 122 TFEU, Article 136(1) TFEU, and rules of international law in finding that the Commission’s assessment of Article 4(2)(b) of the ECI Regulation was correct.

The Commission’s obligation to give reasons

According to the appellant, the General Court’s assessment of the Commission’s duty to state reasons was faulty. The General Court wrongly held that the Commission’s mere reference to Article 4(2)(b) of the ECI Regulation in its Communication was a sufficient reason for the refusal of the proposed ECI. Simply stating that an ECI proposal was refused on the basis of Article 4(2)(b) of the ECI Regulation did not actually explain why the Commission manifestly lacked the competence to register the proposal.

The ECJ’s assessment of this ground of review is clear and consistent with the case law on Article 296 TFEU, specifically expressed in the context of the ECI in Article 4(3) of the ECI Regulation. The Court started by referring to Article 11(4) TEU (i.e. the legal basis of the ECI together with Article 24 TFEU), characterising the ECI as one of the instruments related to ‘the right of citizens to participate in the democratic life of the Union,’ (para 24) stipulated in Article 10(3) TFEU. The Court referred to well-established case law on Article 296 TFEU, according to which an EU institution’s statement of reasons must be assessed by reference to the circumstances of the specific case, taking into consideration the wording of the statement as well as the context and all the legal rules governing the matter in question (para 29). It stressed that the purpose of the duty to give reasons is to enable the person concerned to understand why the decision was taken, and to enable the competent Court to exercise its powers of review.

The Court then went on to consider the General Court’s finding that the Commission had complied with its obligation to state reasons (paras 31-43).The main message of the Court here was that a more detailed statement of reasons by the Commission would only be required if the ECI proposal itself was more detailed. The brevity of the proposed ECI, as well as the general reference made to Articles 119-144 TFEU and the lack of an explanation of the link between those Articles and the content of the proposal, justified the brevity of the contested Decision.

In light of the format of the proposed Initiative, the Commission was entitled to assess the proposal predominantly on the basis of Article 136(1) TFEU (a general power to adopt legislation relating to EMU), which was the least irrelevant Article on which the proposed ECI could have relied. Moreover, there is no obligation on the Commission to justify its assessment of all 26 proposed legal bases or to explain why any other provision of the TFEU was irrelevant. In its assessment, the Court took into account the fact that the General Court was eventually able to review the substance of the Commission’s decision, which, as mentioned above, is one of the underlying objectives of imposing on the EU Institutions a duty to give reasons in the first place (para 40).

In line with the General Court ruling in Minority Safepack, the ECJ in Anagnostakis supported the view that that the Commission would have to publish a more detailed statement of reasons only if the organisers had given more detailed information on the connection between the recommended legal bases and the content of the proposed ECI (para 37). Future ECI organisers should therefore be mindful of the fact that the format of a proposed ECI itself – including the details in the text of the proposal and the Annexes attached to it – is a determining factor of the extent of the Commission’s obligation to give reasons for rejecting a proposed Initiative. This approach might refuel concerns regarding the ability of grassroots organisers to put together detailed explanations of the suitable legal bases for their proposals, not least when these proposals have to do with matters that are as complicated as the EMU.

On the substance of the case

With regard to the substance of the case, the appellant argued that the Commission should have registered the proposed Initiative on the basis of Articles 122, 136(1) TFEU, and rules of international law. The latter argument, which was examined last, was the one most swiftly rejected by the Court: a principle of international law cannot be a legal basis for an initiative by the Commission. According to Article 5(1) and 5(2) TEU, the Commission can only act within the limits of the competences conferred upon it by the Treaties, and the existence of a principle of international law ‘would not suffice as a basis for a legislative initiative’ (see paras 95-103).

Interestingly, before delving into the substance of the matter, the Court considered the scope of judicial review that it could carry out in the case at hand. It clarified that a review of the merits of the General Court’s decision can only be made on the basis of the information provided at the time of the request for the Initiative’s registration. As such, the Court would not take into account any clarifications made by the appellant in the appeal at hand. After this preliminary observation, the ECJ examined the appellant’s arguments concerning Articles 122 and 136(1) TFEU.

The Court first examined whether Article 122 TFEU could have been an appropriate legal basis for the proposed ECI. It reiterated that Article 122(1) TFEU allows the Council to decide, ‘in a spirit of solidarity between Member States’, upon measures appropriate to the economic situation, especially if the Member State is facing severe difficulties in the supply of certain products in the area of energy. It confirmed the finding of the General Court in first instance, which had cited Pringle, that Article 122(1) TFEU ‘does not constitute an appropriate legal basis for possible financial assistance from the Union to Member States who are experiencing, or are threatened by severe financing issues’ (para 69). According to the Court, it did not matter that Pringle concerned the European Stability Mechanism, which was not the focus of the proposed ECI; the point remained that Article 122(1) TFEU does not apply to measures aiming to ease a Member State of its financial difficulties (para 70).

Subsequently, the ECJ also dismissed the appellant’s argument that, contrary to the General Court’s decision, Article 122(2) TFEU could be an appropriate legal basis for the ECI. The provision allows the Council to authorise financial assistance from the EU to a Member State which is experiencing severe difficulties or a serious threat of severe difficulties caused by natural disasters or exceptional circumstances beyond its control. Once again, the ECJ referred to the case of Pringle where it had ruled that Article 122(2) TFEU cannot be used as the basis for the establishment of a general and permanent mechanism of non-repayment of debt (para 75). Since the ECI proposal suggested the deletion of debts owed by the Member States to both the EU and to public and private, natural or legal persons, it could not fall within the meaning of Article 122(2) TFEU, which concerns only financial assistance provided by the EU and not by the other involved persons (paras 76 and 77).

Finally, the ECJ confirmed the finding of the General Court that Article 136(1) TFEU cannot be used as a legal basis for the establishment of the principle of the state of necessity in EU law. According to the Court, the adoption of a measure such as the one suggested by the proposed Initiative cannot be seen as ‘economic policy guidance’ as envisaged by Article 136(1)(b) TFEU. To the contrary, the mechanism proposed by the ECI would replace the free will of contracting parties by allowing for the unilateral writing-off of sovereign debt (paras 90-91).

Overall, it is notable that the ECJ dismissed a number of the applicant’s arguments under each ground of appeal because of the limited scope of review in the context of the case at hand. On appeal, the ECJ can only review the findings of law on the case put forward by the parties in the case before the General Court. As such, a number of the arguments put forward by the appellant were not assessed on their merits, leaving a number of questions unanswered by the Court in this occasion. The first question is whether a Member State facing severe financing difficulties can invoke the so-called ‘state of necessity’ to receive debt relief not unilaterally, but subject to conditionality laid down by the Commission (paras 71-73). The second question is whether the Initiative could be adopted on the basis of Article 136(3) TFEU in conjunction with Article 352 TFEU (the ‘residual powers’ clause). Besides the procedural point concerning the inability of the ECJ to rule on the above two questions on appeal, one might also wonder whether the ECI-case of Anagnostakis would have been an appropriate occasion for the ECJ to make any bold declarations on the issue of a Member State’s debt relief.

The third question left open was whether the Commission should have partially registered the proposed Initiative only to the extent that the proposal suggested the relief of the debt owed by a Member State to the Union. The ECJ did not examine whether the Commission should have registered this interpretation of the proposal. As a more general observation, we should note that the procedural question of whether partial registration by the Commission is possible has now become redundant. Earlier this year, the Commission partially registered the Minority SafePack ECI while, as we will see below, the Commission’s Proposal for a New ECI Regulation specifically refers to the possibility for the Commission to allow partial registration of a proposed Initiative.

Partial Registration of an ECI under the Commission’s Proposal for a New ECI Regulation

Five days after the ECJ’s decision in Anagnostakis, the Commission published its ‘Proposal for a Regulation of the European Parliament and of the Council on the European Citizens’ Initiative’, which suggests the adoption of a New ECI Regulation to replace Regulation 211/2011. In the proposed ‘New ECI Regulation’, the legal admissibility test has been moved from Article 4 to Article 6. The newly suggested provision retains the essence of the current procedure: organisers may only start collecting signatures supporting their ECI after they have submitted their request through the register (Article 6(2)), and the Commission has checked that the proposal satisfies certain legal and procedural criteria (Article 6(3) and (4)) and has registered the proposal (Article 6(1)).

Under the New ECI Regulation, Articles 6(3)(d) and (e) maintain the two legal criteria of the current ECI Regulation: a proposed Initiative will not be registered if it is manifestly abusive, frivolous or vexatious, or if it is manifestly contrary to the values of the EU (see Article 4(2)(c) and (d) of the current ECI Regulation). Perhaps the most notable changes are included in Articles 6(3)(c) and Article 6(4) of the New ECI Regulation compared with the current Article 4(2)(b) of the ECI Regulation. Article 6(3)(c) states that the Commission shall register a proposed initiative if ‘none of the parts of the initiative manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’. This Article should be read in conjunction with Article 6(4), which allows for the partial registration of an ECI by the Commission.

To put it simply (or, at least, as simply as possible), if the Commission considers that only parts of a proposal fall within its competence to propose a legal act, it has to send the proposal back to the organisers within one month, together with the reasons behind its assessment. The organisers then have the possibility – and the responsibility – to change and resubmit, to maintain, or to withdraw their initial proposal. It is not very clear why organisers might want to maintain a rejected proposal, which in all likelihood will simply be rejected again by the Commission. In case the organisers decide to change their proposal, however, they would have the responsibility of submitting the necessary amendments to the Commission. After receiving the amendments, the Commission would have one month to assess the new information and to either register, partially register, or reject the ECI (Article 6(4)).

Partial registration of an ECI would thus be formalised in the sense that the Commission would have to check if ‘a substantial part of the initiative including its main objectives’ does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act. The proposed Regulation does not define what is to be considered ‘a substantial part’ of a proposed Initiative. Not only that, but the proposal shifts the burden on the organisers to re-consider their initiative and re-submit to the Commission, instead of obliging the Commission to specify which parts of the initial ECI proposal it can maintain for the purposes of registration. It will be interesting to see how the European Parliament will react to this, and the rest of the changes to the ECI legal framework proposed by the Commission in the New ECI Regulation, especially since MEPs have been advocating for a more user-friendly ECI in their contributions to the review of the current ECI Regulation.   

Photo credit: CNBC

Wednesday, 29 November 2017

The European Fiscal Board’s first report and the future of the EU’s fiscal framework

Paul Dermine (PhD candidate in EU institutional law, Maastricht University) and Diane Fromage (Assistant Professor of European Law, Faculty of Law, Maastricht University)

EU Fiscal Governance in the post-crisis era: The start of the reflection period and the European Fiscal Board’s first report

Recent events suggest that the Eurozone may soon be entering a new phase of its short but already tumultuous life. As the dust of the sovereign debt crisis starts settling, and the continent slowly returns to growth, winds of change are blowing across the zone, and EMU reform is back on the agenda and hence ardently debated at EU and Member States level. The context is thus ripe to critically reflect on the economic governance system the crisis has brought about, and on the actions carried out by the EU institutions and the Member States within that setting.

This post offers to do just that with regard to fiscal governance. As is well known, the crisis precipitated a substantial upgrade of the rules making up the European fiscal discipline, and an unprecedented strengthening of the surveillance paradigm in the field of budgetary affairs. Since it entered into force, this new normative catalogue introduced mainly by the Six-Pack and the Two-Pack reforms, as well as its main enforcer, i.e. the European Commission, have attracted a great deal of criticism (from the European Central Bank (ECB), the International Monetary Fund and some Member States).

The last blow came recently, from the newly established European Fiscal Board (EFB), which did not wait long before hitting hard. Indeed, the EFB’s creation was first announced in the June 2015 Five Presidents report. The EFB was to ‘coordinate and complement the national fiscal councils that have been set up in the context of the EU Directive on budgetary frameworks. It would provide a public and independent assessment, at European level, of how budgets – and their execution – perform against the economic objectives and recommendations set out in the EU fiscal governance framework. […Furthermore, s]uch a European Fiscal Board should lead to better compliance with the common fiscal rules, a more informed public debate, and stronger coordination of national fiscal policies.’ Its Chair – the Dane Niels Thygesen (a former member of the Delors Committee) – and its four members were designated at the end of 2016 when it hence started to function.

In its first annual report ever, published on 15 November, the EFB presents a mixed picture of the current regulatory framework, and the Commission’s action as its guardian. It focuses on three issues: an evaluation of the implementation of the EU's fiscal framework, a review and assessment of the fiscal stance for the euro area as a whole, and the identification of best practices in the functioning of national fiscal councils. It concludes with some suggestions on the future evolution of the EU’s fiscal framework.

In performing its evaluation, the EFB in fact underlines three characteristics of the current fiscal governance framework that will guide our analysis: its complexity, its persistent asymmetry and the important discretion left to the Commission in the application of the rules in place. It furthermore analyses the possibility of centralized fiscal stabilization within the Euro area.

This report constitutes a welcome opportunity to explore some of the main challenges the EU fiscal governance currently faces, and to suggest potential reform avenues.

Such endeavour is all the more timely as the reincorporation of the Fiscal Compact into EU law and the review of the Six-Pack and Two-Pack reforms will constitute key priorities of the upcoming December EMU package of the Commission. Such political momentum will certainly offer broader opportunities to further enhance and streamline the Stability and Growth Pact (SGP), and the other instruments making up EU fiscal governance.

Background to the EFB’s first report

Before proceeding with an analysis of the EFB’s first report, a few reminders are in order. As is well known, the crisis precipitated a fundamental overhaul of EU fiscal governance. On the one hand, the procedural framework for fiscal surveillance and coordination was substantially strengthened, most notably by increasing the scope and intensity of the oversight exercised by the EU on national public finances. On the other hand, the very substance of the fiscal rules Member States are subject to was tightened and further expanded.

In a nutshell, the fiscal targets are now defined more strictly, requiring stronger yearly adjustment efforts from the Member States. If the deficit remains the central criterion of the EU fiscal discipline regime, the debt criterion has been further operationalized, and an expenditure benchmark was added. The reliance on structural rather than nominal indicators has been further generalized. These developments show the clear intent of the EU to exercise close and continuous scrutiny over all aspects of national budgets, in order to enhance their overall sustainability.

However, conscious of the need to accommodate a range of contingencies, and eager to preserve a certain room for flexibility, the Six-Pack reform has also multiplied the escape clauses entitling Member States to derogate from their budgetary obligations under certain circumstances (i.a. structural reforms implementation, severe economic downturn).

The overpowering complexity of EU fiscal governance

Certainly, a major shortcoming of this new normative body is its overwhelming complexity. In the post-crisis era, EU fiscal discipline consists of a dense web of detailed rules and sub-rules governing public debt, deficit and expenditure. Those rules display a high level of prescription and specificity, and yet, are tempered by an equally complex array of general escape clauses and potential loci for flexibility and derogation. Further increasing the systemic intricacy of the EMU fiscal discipline regime, the rules are spread over different EU regulations and directives, partially replicated in international treaties and national laws (which do not always fully overlap).

Against that background, it is proven that national authorities struggle to understand the exact rules they are to abide to, and the margin of manoeuvre they still enjoy under the current framework. Such lack of clarity also undermines transparency with regard to the rules’ ‘indirect’ addressees, namely the general public and the markets, and may in the long run harm the efficiency of public oversight and market mechanisms as enforcement channels of fiscal discipline in the EMU.

Quite obviously, there is a strong need for simplification. Even the European Commission seems to acknowledge that. Too many rules, too many operational targets do not favor compliance, monitoring, enforcement and overall intelligibility, thereby undermining the legitimacy of the EU’s actions. In that regard, interesting proposals for reform are currently on the table. Correctly positing that the ultimate aim of the EU fiscal regime is the preservation of debt sustainability, IMF officials and, although to a lesser extent, the EFB consider that the system would gain in readability and overall efficiency if it were to revolve around one fiscal anchor (the debt ratio instead of headline deficit) and one operational target (possibly the ‘fiscal effort’ variable). In a similar fashion, a substantial streamlining of the existing escape clauses would also appear necessary.

The structural asymmetry of EU fiscal discipline

Another important issue inherent to the current regime is its structural asymmetry. From the outset, the SGP was designed as a tool to correct excessive deficit and debt levels and tame profligate States. Its rules and procedures are thus exclusively driven by that objective, and the crisis further strengthened this focus. Conversely, the rules do not contemplate that States may be too frugal. Under the SGP, surplus equals balance, and surplus countries are under no parallel duty to bring their fiscal position back to equilibrium. As an asymmetric construct, the SGP is one-sided, and toothless when it comes to dealing with too ‘virtuous’ countries.

This has proven particularly problematic over the last few years, as the Commission was seeking to achieve a positive fiscal stance for the Euro area, and sought to enjoin the few Member States accumulating large budgetary surpluses (such as Germany, Luxembourg or the Netherlands) to engage in mildly expansionary policies by using the available fiscal space and boosting public investment. Under the current regime, such injunctions are at best wishful thinking, and lack any kind of legal support in the texts.

In our view, such asymmetry ought to be corrected, especially at a time when Europe heavily suffers from an investment backlog. Does this mean that an ‘Excessive Surplus Procedure’ should be established? This would probably be a step too far. But if the achievement of budgetary equilibrium is to be the ultimate rationale of the SGP, its provisions should be amended so that when appropriate, fiscal expansion too can be commanded.

How complexity and flexibility empower the European Commission

The current regime’s inherent complexity and flexibility, combined with the conceptual indeterminacy of some of its founding concepts (such as that of the output gap), have also created significant room for administrative discretion, which the Commission has been very eager to exploit. It is indeed impressive to note that at any key stage of the surveillance procedure organized by the SGP (either under its preventive or corrective arm), the Commission enjoys discretion and needs to exercise judgement.

Under a supposedly rules-based system, this appears to be problematic (to some extent at least), and obviously comes at the expense of the predictability, even-handedness and efficiency of the entire regime. The main risk is that certain choices of the Commission may no longer be economically motivated, but founded on political or ad hoc considerations that may run counter to the economic rationale underlying the EMU fiscal framework. In that regard, one may for example mention the very generous decision of the Commission that Italy was eligible to the ‘structural reforms’ escape clause, or its lenient stance in the framework of the Excessive Deficit Procedure against France, which was never stepped up despite the clear insufficiency of the French consolidation efforts ('Because it is France' was the main justification expressly advanced by Juncker).

The surprising decision of the Commission in the summer 2016 not to impose sanctions (even symbolic) on Spain and Portugal for failing to take corrective action in the framework of their EDP, also shows that discretion may come at the expense of enforcement and, ultimately, of compliance. This notwithstanding, it is clear that a system of smart rules cannot do without a dose of flexibility and discretion. In the future, the focus should therefore not be on trying to erase the loci for administrative judgement, but on making sure that such judgement is primarily driven by an economic, non-political rationale.

This might however prove difficult as the Commission (also) needs to ensure that its actions remain legitimate in the eyes of the citizenry in addition to guaranteeing the EU’s fiscal stability and it arguably has to take account of the fact that its decisions to impose fines on non-complying Member States can only be overcome by qualified majority in the Council. Simplifying the normative corpus should nevertheless help in pursuing this objective of economically-based decisions. The Commission should also be more transparent on its methodologies, and consistent in their application. On a different note, the risk of biased, political application of the SGP by the Commission primarily comes from its current hybrid nature: “between an independent executive agency and a political government”, as the EFB rightly puts it (p. 63).

Such risk may be mitigated by a stronger reliance on economic advice independent of short-term political considerations. Where this input should come from remains to be seen. Quite naturally, the EFB has already offered its services. On the face of it, the EFB’s role is significantly different from that of national fiscal councils since it is not bound to take an active role in the implementation of the EU fiscal framework; rather it has to evaluate the Commission’s actions in this regard.

By contrast, even if national councils in most cases do not issue decisions binding on their governments, they have to produce or endorse macroeconomic previsions, they declare the activation of the automatic correction mechanism etc. In its evaluation, the EFB offers to endorse responsibilities closer to that of national councils.

Finally, in an attempt to further reduce discretion, EMU fiscal discipline could gain in consistency, foreseeability and congruence if it were to rely on smarter enforcement mechanisms by means of financial sanctions. Financial sanctions have shown all their limits in the past. In our view, macroeconomic conditionality, i.e. linking access to EU funds to (an almost) compliance with the fiscal rules of the SGP, could be the way to go. It is already used under the current multiannual financial framework, although in a much limited way. The pattern could be generalized under the next framework.

Towards a Fiscal Union?

Next to the issues of complexity, asymmetry and discretion visible in the EU fiscal framework, the question of centralized fiscal stabilization also deserves attention. The Eurocrisis has brought out in the open the founding insufficiencies of the rules-based paradigm, and the necessity to transcend such approach by endowing the supranational level (the EU or the Eurozone) with a fiscal capacity of its own is now clearer than ever.

This shift from negative to positive fiscal integration could take the form of unemployment insurance or investment protection, with the exemption of investments from the golden rule or not. The introduction of a rainy-day fund – also envisaged by the Commission – could also be a possibility. In our view, such a fund could appear to be a valuable option since it would function on the basis of accumulated resources regularly paid by Member States which would have a direct incentive to follow SGP rules. To this type of fund or an unemployment insurance the EFB however favors the protection of investment, which admittedly should be guaranteed too; perhaps it is also the least bold shift towards an unpopular Fiscal/Transfer Union.

Another possibility could be the introduction of an EU budget. Although the EFB acknowledges that this debate falls outside of its remit, it provides its opinion ‘as economists involved in the analysis of public finance more generally’ (p. 67), thereby arguably affirming its standing in the more global EU financial area. The form this budget should take – whether as a dedicated euro area budget (as recently suggested by President Macron) or as a dedicated budget euro area budget line in the EU budget (as envisaged by the European Commission) – is left open; in the absence of a dedicated euro-area parliamentary arena, perhaps the latter option is preferable to avoid further increasing the European democratic gap.

Beyond this, such a move would significantly go beyond the sole fiscal stabilization and adopt a broader stance on fiscal policy. This move, which would in fact represent the return to a perspective adopted at previous stages of the European integration process, would indeed be particularly welcome as it would (eventually) provide remedy to some of the shortcomings of the current fiscal policy design.

What does this report tell us?

This report is, in our view, important for at least two reasons. First, it bears a valuable assessment of the current EU fiscal framework as implemented by the Commission at a time when reflections on the future of the Eurozone architecture are high on the EU agenda. Second, it clears up certain doubts that could have existed when the EFB was first established, in particular as to its capacity to provide a truly independent assessment of the Commission’s actions. Indeed, concerning the latter point, a certain degree of uncertainty existed in light of the close ties between the EFB and the Commission, as well as in light of the absence of the EP’s involvement.

Furthermore, the EFB’s ability to act as an authoritative institution was not a given since it was established as a completely new institution that hence had to first prove its reliability (and independence). The content of the first report analysed here appears to indicate that the EFB is likely to surpass both hurdles successfully, at least as long as it is chaired by the prominent and respected expert Niels Thygesen.

Concerning the future of the EU fiscal framework, it certainly provides a useful and timely assessment. It both highlights the weaknesses in the current fiscal framework and in its enforcement by the Commission and makes a valuable contribution to the debate on its reform; this contribution is all the more valuable as it stems from the EU institution tasked with performing this assessment and not from the ECB or the IMF as had been the case thus far. We will now have to wait until the beginning of December to see if and how these proposals have been picked up by the Commission.

Barnard & Peers: chapter 19
Photo credit: Supertrader 

Monday, 27 November 2017

Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal

By Nuno Ferreira (Professor of Law, University of Sussex) and Denise Venturi (PhD student, Scuola Sant Anna, Pisa)*

Hungary in the spotlight again

Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications  of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached  a new low.

The most recent incident came to the public knowledge through a reference for a preliminary ruling to the CJEU by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in the Case C‑473/16, F v Bevándorlási és Menekültügyi Hivatal (the ‘F case’). The case concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. The Hungarian domestic court posed two questions to the CJEU, essentially asking whether the application of Article 4 of the ‘qualification Directive’ on the definition of refugee status (Council Directive 2004/83/EC), in the light of the right to dignity in Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter), precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants. Should that possibility be precluded, the referring Court then asks whether the asylum authorities are prevented from examining by expert methods the truthfulness of these claims.

The questions thus refer to the interpretation of particular provisions of Council Directive 2004/83/EC. Yet, the material facts under analysis in the case referred to the CJEU occurred in April 2015, so (as the national court acknowledged) the law that applies to the facts and that needs to be interpreted in this case is the successor to Council Directive 2004/83/EC – Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive) – which Member States had to apply by 21 December 2013. (Note that this recast Directive could be replaced by a Regulation in future, as discussed here).

Following the hearing on 13 July 2017, Advocate General Wahl delivered his Opinion on 5 October 2017. The focus of our analysis will be on this Opinion, but first it is important to recall the case law the CJEU has already produced on sexual orientation and gender identity (SOGI) claims of asylum. Indeed, this is the third case the CJEU has dealt with on SOGI-related asylum claims, and we expect this third case to better reflect international standards than the previous two, particularly in the light of the EU Charter and UNHCR Guideline No. 9.

Third time lucky?

The CJEU dealt with Sexual Orientation and Gender Identity (SOGI) asylum claims for the first time in the joined cases C-199/12 to C-201/12, X, Y and Z v. Minister voor Immigratie en Asiel. Despite some shortcomings,  this decision expressly recognised that persecution on the basis of sexual orientation can give rise to refugee status under the ‘particular social group’ ground of the 1951 Refugee Convention (which is reproduced in the qualification Directive). It was however one year after X, Y and Z that the CJEU was called to provide guidance on evidentiary standards in SOGI asylum claims in another case concerning three gay men seeking asylum on the basis of their sexual orientation, who were not deemed credible (Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014, discussed here). The CJEU was asked whether the Charter, in particular Articles 3 (right to the integrity of the person) and 7 (respect for private and family life), as well as Article 4 recast Qualification Directive, which sets out some general rules for assessing asylum claims, posed certain limits on national authorities when verifying an asylum seeker’s sexual orientation.

This judgment is important as it establishes some core principles on credibility and evidence assessment; however, the Court could have offered more positive guidance in that regard. At the outset, the CJEU found that although the applicants’ mere declarations are not sufficient per se to establish their sexual orientation, authorities are bound by certain limits when assessing a SOGI asylum application. Notably, such assessment must be conducted on an individual basis and must not be based merely on stereotypes, which is a mistake too often committed by decision-makers in SOGI cases. Nonetheless, the CJEU did not completely overrule the use of stereotyped notions, but considered them a useful element in the overall assessment. As for evidence, the Court precluded the recourse to detailed questions on sexual practices and to ‘tests’ to establish applicants’ sexual orientation in light of Articles 1 (human dignity) and 7 of the EU Charter. It also banned the production in evidence of films showing the applicant’s engagement in same-sex activities. Finally, the CJEU also affirmed that late disclosure of an applicant’s sexual orientation as the main reason for the asylum claim, does not per se impinge on the applicant’s credibility.

In a nutshell, the Court gave a ‘black list’ of what authorities cannot do, but it did not provide any clear guidelines of what, they should do to assess SOGI asylum claims. Notably, the Court made it clear that there is no room for evidence that, by its nature, infringes human dignity and which does not have any probative value. This prohibition, the Court argued, cannot be circumvented even if it is the applicant’s choice to submit such evidence, as this would incite other applicants to do the same, creating a de facto requirement. While the Court’s judgement in X, Y and Z fully establishes the possibility of recognising SOGI applicants as refugees, the Court’s findings in A, B and C constitute the backdrop against which the F case will ultimately be decided.

‘Tell me what do you see… is it gay enough?’

The F case has put back on the CJEU’s agenda the evidentiary standards to be applied in SOGI asylum cases. Several contentious practices have been criticised throughout the years in this context, from the use of stereotyped questioning to authorities resorting to practices of no medical or psychological value such as phallometry, whereby reactions of gay male asylum claimants to watching pornography were supposed to indicate their sexual preferences. Despite such practices having been highly criticised both by the UNHCR and NGOs, the F case makes it clear that they persist in different ways.

The precise tests in question in this case are the ‘Draw-a-Person-in-the-Rain’ test, Rorschach test and Szondi test. Such projective, drawing tests attempt to elicit information that ‘patients’ may struggle or prefer not to verbalise otherwise, helping psychologists to form an opinion about individuals’ personality, emotional well-being and mental health. These tools are generally contentious, even if they go on being used by psychologists routinely in most countries. Their use to determine one’s sexuality is fundamentally abhorrent, thus simply not considered by the relevant literature or reputable professionals.

AG Wahl recognises how scientifically discredited such tests are in relation to sexual orientation matters, citing an American Psychological Association 2009 report. The question of whether one is gay or not is, itself, poorly framed, as one’s sexual orientation can lie somewhere along a complex continuum and change over time. Attempts to determine one’s sexuality objectively have invariably been held to be ‘junk science’, for relying on baseless stereotypes. As Weber has rightly stated in the context of the recent debates around using Artificial Intelligence (AI) to determine one’s sexuality on the basis of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals and fail to recognise that the ‘homosexual’ and the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ will be used in the West in the context of SOGI asylum.

The tests in question in the F case assume that individuals with a particular sexual orientation have certain personality traits, which not only is patently false, but also runs against the prohibition on stereotypical decision-making established by A, B and C. At the oral hearing in this case, the Hungarian authorities tried to justify the use of these tests with the A, B and C judgment. The argument ran as follows: as the judgment precluded questions about claimants’ sexual orientation, the authorities had to resort to tests. The problem with this assertion is that it is based on a false premise: the judgment in A, B and C did not prevent authorities from asking any questions about claimants’ sexual orientation, but simply precluded certain questions and practices that clearly breach the dignity of the individual.

Although both the Commission and the Hungarian authorities suggested in the oral hearing that these tests should be allowed because they only constitute an element of the overall assessment of the asylum claim and may lead to the confirmation of the credibility of the applicant, the exact opposite happened in this case. Indeed, the test was used by the Hungarian authorities to discredit the applicant’s account and deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to prevent the claimant from being recognised as refugee. Unfortunately, AG Wahl’s Opinion fell far short from precluding such tests.

The Advocate General’s Opinion

In his Opinion, AG Wahl rightly frames this case as one that is very clearly about using psychologists’ expert opinions in assessing the credibility of claimants. The provision at the centre of this debate – as framed by the referring questions – is Article 4(5) of the recast Qualification Directive, which discharges applicants from the need to prove their asylum claims through documentary or other evidence when a range of conditions is fulfilled, including the applicants having made a genuine effort to substantiate their claims, having offered a satisfactory explanation for the lack of further evidence, and having provided an overall credible account. Based on this provision, the applicant used the oral hearing to highlight that there was no need for any further tests in his case, because there were no inconsistencies. The Hungarian authorities counter-argued that there were contradictions in the applicant’s statement (without specifying exactly which contradictions), so it was necessary to probe its veracity.

Another EU law instrument turns out to play a more important role in this Opinion, namely Directive 2013/32/EU (the recast Asylum Procedures Directive). Indeed, the Qualification Directive establishes the general rules to follow in terms of evidentiary standards in asylum cases, in particular Article 4, but it is Article 10(3) of the Asylum Procedures Directive that determines that Member States’ asylum authorities should reach individual, objective and impartial decisions, and that they have the possibility to seek expert advice to assist in their decision-making. On this basis, AG Wahl proceeds by considering the benefits of involving psychologists in the adjudication process (para. 33-34), but is also very clear about the impossibility of a psychologist determining an applicant’s sexual orientation based on personality tests (par. 36). Nonetheless, AG Wahl goes on to analyse under which circumstances such tests can nevertheless be admitted, thus effectively accepting them.

AG Wahl tries to soften the blow of admitting the tests in question by stating that consent is required, and that the tests need to be carried out in a way that is compatible with the rights to dignity and to respect for private and family life (Articles 1 and 7 of the EU Charter and Article 8 of the European Convention on Human Rights). Although AG Wahl expressly acknowledges the difficulties in withholding consent in the context of an asylum claim, he does not seem to find it problematic that – in his own words and in a likely violation of the applicant’s rights under EU law – the ‘applicant’s refusal [to consent to the tests] may have certain consequences that the applicant himself has to bear’ (par. 45). In other words, refusing a test with no probative value that could violate applicants’ rights may lead to the refusal of their asylum claim – a highly disproportional and unfair outcome, we would argue.

The Opinion goes on to further qualify the admissibility of such tests by questioning the probative value of examinations based on dubious science or used in the wrong context (par. 48). And yet, AG Wahl also offers domestic courts a wide margin of appreciation in this regard, by stating that it is not for the CJEU to assess such tests. Having seen how the tests in question had been used in relation to a gay male applicant to deny him asylum, it is patently unwise to offer domestic authorities such leeway in asylum cases relating to sexual orientation. The fact that AG Wahl refers to the right to an effective remedy (Article 47 of the EU Charter) and to the freedom of domestic courts to depart from the ‘findings of the expert’ (par. 50) may be an implicit suggestion that the domestic court in this case should differ from the experts’ opinions and feel free to grant asylum to the applicant. Yet, that is clearly insufficient to appease the legitimate concerns of asylum seekers in similar situations, since they will be at the mercy of (administrative and judicial) authorities who may happily offer probative value to ‘junk science’ detrimental to their asylum claims.

AG Wahl’s Opinion accepting in principle the use of projective personality tests in cases involving asylum claims on the basis of sexual orientation is deeply disconcerting. On the one hand, he clearly doubts the usefulness or appropriateness of such tests (even referring to Principle 18 of the Yogyakarta Principles protecting individuals from medical abuses based on sexual orientation or gender identity), and he alerts domestic courts to the possibility of disregarding them even when they are carried out. On the other hand, he does recommend that such tests should be allowed (even if with a range of supposedly helpful caveats), thus abandoning claimants to the mercy of potentially unsympathetic domestic authorities. Equally disconcerting is the fact that nowhere in the AG’s Opinion is there a reference to the principle of the benefit of the doubt: although it may not be strictly necessary to refer to this principle in this context, its absence is striking for leaving out of the equation an essential element of the evidentiary standards in refugee law (para. 203-204 of the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status). It is submitted that the focus of the Opinion should have been on the line of questioning that should have been used, such as per UNHCR Guideline No. 9.

he Opinion in this case could have much more simply asserted, as AG Sharpston did in her Opinion in A, B and C (largely followed by the CJEU), that ‘medical [or psychological, we would add] tests cannot be used for the purpose of establishing an applicant’s credibility, as they infringe Articles 3 and 7 of the Charter’ (par. 61), and that applicants’ consent is both essentially irrelevant and questionable (par. 67). Instead, AG Wahl offers poor guidance to the CJEU.

‘Projecting’ this Opinion onto the CJEU’s Judgment

In the F case, the CJEU will be called upon to interpret EU law with regard to the evidentiary assessment of SOGI asylum cases in a more targeted way than it did in A, B and C. Predicting a Court’s verdict is something one should try to avoid; however, the relevance of the issues at stake in the F case allows us to contemplate some potential scenarios. First, the CJEU has the option to build on and expand its approach in A, B and C and therefore construe its whole reasoning on the basis of respect for the EU Charter, particularly Article 1. In this sense, psychological personality tests to evaluate sexual orientation would be precluded, as the prohibition set forth by the CJEU in A, B and C is arguably not limited to physical examination, but extends more generally to all ‘“tests” with a view to establishing […] homosexuality’.

Secondly, should the CJEU follow the AG’s opinion, it would need to carefully construe how it is possible to ensure that psychologists’ expert opinions are truly limited to an evaluation on the general credibility, and not just a loophole to pave the way to unreliable psychological assessments of sexual orientation.

Further, the Court should make sure that any such expert opinions on credibility are not used as ‘lie detectors’ based on preconceived assumptions – otherwise we could well resort to Harry Potter’s veritaserum for all asylum claims. Moreover, the CJEU would need to explain how genuine consent can be sought, since the option of taking tests that are not compulsory but seen as useful for credibility assessment would put pressure on other applicants to take the tests, thus undermining the validity of any consent obtained.

Finally, should the CJEU agree with the use of projective personality tests in SOGI asylum claims, it would compromise the progressive steps previously taken in this area – a slippery slope we strongly hope the Court will not enter. The CJEU has already spelled out, in A, B and C, some of the crucial elements for deciding the present case; now, it is a matter of entrenching those elements, so as not to leave room for ambiguity or for the use of evidentiary means that are in breach of asylum seekers’ dignity and fundamental rights.

The authors wish to thank the useful comments provided by Dr Carmelo Danisi and Dr Moira Dustin on previous drafts of this text.

*Reblogged with permission from the EUMigrationlaw blog

Barnard & Peers: chapter 9, chapter 26
JHA4: chapter I:5

Photo credit: Wikimedia Commons

Thursday, 16 November 2017

Minimum Alcohol Pricing is Appropriate & Necessary: Scotch Whisky Association v Lord Advocate [2017] UKSC 76

Angus MacCulloch, Law School, Lancaster University (@AngusMacCulloch)

Lord Mance has handed down the long awaited judgment in SWA v Lord Advocate in the UK Supreme Court finally dismissing the SWA’s appeal, and permitting the Scottish Government to implement its Minimum Unit Pricing (MUP) policy in relation to retail alcohol sales. The scheme to introduce a MUP of £0.50 per unit, under the Alcohol (Minimum Pricing)(Scotland) Act 2012, has been delayed for 5 years by this legal challenge which characterised the scheme as being contrary to EU law; in that it was contrary to both Article 34 TFEU, as it was a measure having equivalent effect to a quantitative restriction on trade, and that it was contrary to the bar on price fixing under the Single CMO Regulation EU/1308/2013 covering wine.  

This is the fourth, and final, substantive judgment in this litigation. At first instance the Outer House of the Court of Session found MUP to be lawful, [2013] CSOH 70, and after receiving a response to a preliminary ruling from the Court of Justice of the EU, Case C-333/14 EU:C:2015:845, the Inner House, [2016] CSIH 77, also upheld the lawfulness of MUP. The SWA’s appeal was perhaps inevitable, but after a hearing in July 2017, the final judgment has largely confirmed the findings of both Scottish courts that the policy could be justified on the basis of the protection of public health.

By the time the case reached the Supreme Court it was largely settled that MUP could be characterised as a measure having equivalent effect to a quantitative restriction under Art 34 TFEU, and would be contrary to the Single CMO Regulation, but any restriction contrary to those provisions could be justified on the basis of public health protection. The majority of the discussion in the Supreme Court surrounded the proportionality of MUP; was there an alternate measure which could achieve MUP’s aim but which be less restrictive of trade or competition?

The Aim and Assessment of the Measure

Much of the Supreme Court judgment contains an, at times detailed, analysis of the public health evidence presented to justify the introduction of MUP. The CJEU addressed the appropriate time frame for the assessment of a measure and Lord Mance similarly adopted a permissive attitude to the question. Flexibility was given to allow the consideration of the most recent health studies, and the respondent, the Scottish Government, was permitted, at [28], to:

‘refine the aims advanced and to demonstrate that, on the material now available, the proposed measure is justified, even if it only meets an aim which is narrower than, but still falls within the scope of those originally advanced’.

Both the AG and the CJEU drew attention to the ‘two fold objective’ (CJEU [34]) of MUP, in relation to problem drinking and the general consumption of alcohol, but this flexibility allowed the Scottish Government to refocus their argument on what the new evidence showed to be the most important benefits of MUP, in relation to problem drinking, and away from the issues of general consumption. That was to their advantage when as it was seeking to justify a more targeted measure - MUP - over a more general one - increased excise duty.

The Test of Proportionality

Lord Mance opened with a consideration of the guidance set out by both AG Bot and the CJEU in relation to justification and the proportionality of restrictions under EU Law. After setting out sections of the AG’s Opinion Lord Mance characterised his approach as being a three part test: is the measure i) appropriate, ii) necessary, and iii) a balancing of the restrictive effects of the measure as opposed to possible alternatives [14]. In his assessment of the CJEU’s ruling on the question of proportionality Lord Mance found the CJEU’s test to be somewhat narrower, only relying on the first two limbs, although he did recognised that the CJEU considered some aspects of third limb within ‘necessity’. On this question of the third limb, or ‘proportionality stricto sensu’, Lord Mance posed the following rhetorical question, at [47]:

‘can it be that, provided an objective is reasonable and can only be achieved in one way, it is irrelevant how much damage results to the ordinary operation of the EU market?’

This task was described as being a comparison, ‘between two essentially incomparable values’ – health and the market [48]. It was also stressed that, ‘it was not for any court to second-guess the value which a domestic legislator may decide to put on health’ [48]. This rejection of a ‘balancing’ approach between the competing values of health and the market was important. It reduced the need for the Scottish Government to produce compelling economic evidence of the impact of MUP on future markets, but, more importantly, because it did not compel the court to weigh up, ‘the number of deaths or hospitalisations … [which were] “proportionate to” the degree of EU market interference’ [48].

The final decision on proportionality – after consideration of the new evidence and argument before the Supreme Court – was clear.

‘A critical issue is, as the Lord Ordinary indicated, whether taxation would achieve the same objectives as minimum pricing. … [T]he main point stands, that taxation would impose an unintended and unacceptable burden on sectors of the drinking population, whose drinking habits and health do not represent a significant problem in societal terms in the same way as the drinking habits and health of in particular the deprived, whose use and abuse of cheap alcohol the Scottish Parliament and Government wish to target. In contrast, minimum alcohol pricing will much better target the really problematic drinking to which the Government’s objectives were always directed and the nature of which has become even more clearly identified by the material more recently available’ [63].

This conclusive finding that MUP is the most effective way of targeting a particular pattern of problem drinking in Scotland reflects the same analysis of the evidence by the Lord Ordinary and Lord President in the Court of Session.

The other key point that Lord Mance went on to make concerned the respective roles of the Scottish Parliament, in setting health policy priorities, and the court, in assessing the proportionality of a measure. As the ‘balancing’ approach, suggested by AG Bot, had ready been rejected it is perhaps not surprising that Lord Mance restricted the role of the court.

‘the Scottish Parliament and Government have as a matter of general policy decided to put very great weight on combatting alcohol-related mortality and hospitalisation and other forms of alcohol-related harm. That was a judgment which it was for them to make, and their right to make it militates strongly against intrusive review by a domestic court’ [63].

But in perhaps the most important passage Lord Mance continued:

‘That minimum pricing will involve a market distortion, including of EU trade and competition, is accepted. However, I find it impossible, even if it is appropriate to undertake the exercise at all in this context, to conclude that this can or should be regarded as outweighing the health benefits which are intended by minimum pricing’ [63].

Given the strength of that conclusion it is difficult to see a circumstance in which a UK court presented with clear evidence of prospective health benefits from an intended public health intervention, which is predicted to prevent mortality and hospitalisations, would decide that such a measure is a disproportionate intervention.

On Evidence

The Supreme Court’s heavily reliance on the evidence base behind the adoption of MUP is unsurprising. The CJEU stressed the importance of evidence to justify a measure in both the SWA reference and Case C-148/15 DPV. There is, however, no better example of the extent to which evidence can become important, but also a significant burden (as indicated at 411) to a court, than BAT v Dept of Health [2016] EWHC 1169 (Admin).

Although the Supreme Court was heavily reliant on the wealth of modelling evidence presented to it, it did recognise that much of the evidence was, as the AG described it, ‘somewhat experimental’, and that it would difficult ‘predicting the precise reactions of markets and consumers to minimum pricing’ [62]. In that regard the Lord Mance appears to have taken comfort that the proportionality of the measure in the longer term would be assured as the Scottish Government had built a sunset clause into the Act, and that a formal review of the actual effects of the legislation would be required or it would cease to be in force after six years.


I have been following this case for a very long time and my initial reaction is that it is a good conclusion. The Supreme Court has made it clear, much more so than the CJEU did, that a convincing and well evidenced public health argument should, and hopefully now will, win out over trade or competition concerns. The proportionality test still has teeth. A Member State seeking to justify a measure must be clear about its aim, and it must have a good evidence base to explain and justify the effectiveness of the intervention it has chosen. But it now appears that the courts, in the UK at least, will now give some deference to the policy choices of the legislature if they stand up to that scrutiny.

It is not the courts role to second-guess policy in these areas, but I am sure that we will see new challenges if other jurisdictions attempt to introduce similar policies. Other administrations may see this case as clearing the way, but they should be careful as the decision in this case was tied to a detailed analysis of a particular Scottish problem. It is not the case that the same intervention will be appropriate or necessary everywhere else.

Barnard & Peers: chapter 15, chapter 16

Photo credit: Sky News