Is Data Protection Coming Home? The CJEU on data protection law and Jehovah’s Witnesses – and political canvassing?

Professor Steve Peers, University of Essex

You’re in the shower, and the doorbell rings. It might be the Amazon delivery you were expecting, with your daughter’s present – and it’s her birthday tomorrow. You leap out of the shower and dash wetly down the stairs to open the door in time. But it’s only a couple of Jehovah’s Witnesses.

After responding to their entreaties in much the same way that Boris Johnson responds to business, you close the door, and think no more about them. Yet they are still thinking about you. In order to focus more effectively on who to bother about God again, they keep a record of each household they visit, with categories of (say) “Believer”, “Unbeliever”, or (if you couldn’t find a towel) “Satanist”.

It’s not just religious enthusiasts who might knock on your door and gather personal data, of course. There are also businesses, charities and political canvassers. For the Brexit Referendum, I joined the local Labour party to knock on doors in the leafy London Borough of Remainey. If I recall correctly, we kept records of voters in the categories of “Remain”, “Leave”, “didn’t say” and “absent”. (It seems the Labour party has stopped using the category of “Bigoted Woman”).

These activities are of interest not just to preachers or spin doctors, but also data protection authorities. But does data protection law apply at all to such door-knocking? The CJEU answered that question yesterday, in a new judgment answering questions raised in a dispute between the Finnish data protection board and Jehovah’s Witnesses.

Facts

The Finnish data protection board had ordered the Jehovah’s Witnesses to stop processing personal data unless they complied with Finland’s version of the EU’s data protection Directive (since replaced by the infamous GDPR). The board asserted that both the religious community and its members were “data controllers” with liability for the correct application of data protection law. A lower court agreed with the legal challenge brought by the Jehovah’s Witnesses, but on appeal a court asked the CJEU to interpret the relevant provisions of EU law.

In practise, the Jehovah’s Witnesses take records (names, addresses, religion, family status) of their meetings with householders. There’s also a list (perhaps a rather longer one) of those who would like the Jehovah’s Witnesses never to darken their door again. The dispute concerned the main list: did it fall within the scope of EU law at all, or was it rather outside the scope of that law because of the “household exception” or the non-exhaustive security exception to it, or because the notes were too disorganised to form part of a “filing system”. Furthermore, if the Directive did apply, were both the community and its individual members data controllers?

Judgment

The CJEU began by asserting that the exception for state security and similar areas did not apply to Jehovah’s Witnesses, as that exception could only apply to acts of the State. Secondly, the household exception did not apply either, because following prior case law on home security cameras (discussed here), that exception did not apply to activity directed outward from the household. While proselytisation was covered by the EU Charter of Rights as an aspect of freedom of religion, that did not mean that door-knocking fell within the household exception.

Next, was the note-taking part of a “filing system”? The Court ruled that the Directive “broadly defined” this notion: the requirement that the data be “structured according to specific criteria” is “simply intended to enable personal data to be easily retrieved” (para 57). No data sheets, specific lists, or other method of processing personal data was necessary to show the existence of a “filing system”. In this case, it was sufficient that the data was structured according to the Jehovah’s Witnesses’ criteria for a “filing system” to be present.

Finally, are there multiple data controllers here? Following its recent judgment on Facebook fan pages (discussed here), the CJEU reiterated a “broad definition” of that concept, although that did not mean that every data controller had equal responsibility, or had to have access to the data to be a controller. In this case, the coordination of its members’ activity by the Jehovah’s Witnesses community made them both responsible for the data processing. This conclusion wasn’t affected by the Treaty provision on the autonomy of religious bodies, following the recent judgment on discrimination law and religious bodies (discussed here).  In effect, such autonomy does not grant them a general exemption from EU law. Compliance with that law is, in effect, one more cross for them to bear.

Comments

It makes sense that the household exception does not apply to Jehovah’s Witnesses, given that in practice many homeowners either do not open their doors to the eager evangelists, or slam the doors in their faces if they do. It’s also striking that the Court takes a broad definition of “filing systems”. That’s consistent with its broad interpretation of the scope of EU data protection law in many cases, and its interpretation of “data controller” reiterated here; but UK data protection lawers will be aware that it contrasts with the narrower definition of “filing systems” in UK case law. The Court’s emphasis on joint responsibility of data controllers echoes its recent judgment on Facebook and friends, as noted above.

That leads us to the broader implications of the judgment: its potential impact on politics. There’s no reason to doubt that the judgment applies equally to political canvassing, as the collection of data and relationship with householders is similar, and the Charter protection for freedom of expression would by analogy not protect parties from the application of data protection law either. The insistence on joint responsibility of data controllers poses a possible complication for door-knockers of either type: they must be aware not only of the inspiring words of Jesus Christ or Jeremy Corbyn, but also the infinitely drier text of the GDPR, a prospect which surely enthuses not the many, but the (very, very) few.

But while we know that EU data protection law applies to such activities, and that responsibility is shared, we don’t know how to apply the law in such cases, as the Court wasn’t asked. (The earlier ruling on home security cameras similarly leaves such possible questions unanswered). On what grounds can the data be processed? Must homeowners give their consent to the processing for specific reasons? One can imagine that those who are already reluctant to discuss their faith with Jehovah’s Witnesses will be even more reluctant to discuss the minutiae of data protection consent with them too. Can the legitimate interest of evangelists or political canvassers justify the processing of data? Or can a statute validly regulate this issue? (One suspects that politicians will be particularly keen to find time to legislate to justify their own activities, if necessary).

The judgment – combined with the recent Facebook fan page judgment – might also have implications not only at the low-tech end of political canvassing, but at the high-tech end too. Today sees the publication of the UK Information Commissioner’s report into allegations of breaches of data protection law during the Brexit referendum, including also allegations about Facebook’s work with Cambridge Analytica. The ICO also published suggestions on data protection law and the democratic process. (See also the recent publications from the Electoral Commission and an Independent Commission on Referendums). Traditionally it’s been easier to address concern about the fairness of political processes because people wear red or blue rosettes when knocking on the door, or parties identity themselves in political literature or broadcasting. It’s far harder where online political messaging is questionably funded, poorly regulated (particularly as regarding funding limits and foreign funding) and frequently dishonest.  Recent judgments and regulatory efforts are baby steps towards addressing these essential concerns.

Photo credit: JW.org

Revising EU visa policy

Professor Steve Peers

Back in 2014, the Commission proposed a revamp of EU visa policy (concerning short-term visit visas), in the form of a proposal to revise the EU’s visa code. This proposal ultimately failed, because the EU Parliament and Council could not agree on whether it should include “safe passage” visas for those needing protection or not. Now the Commission is trying again, focussing this time on security concerns, rather than economic growth.

Background

The rules for issuing short-term visas are set out in the Visa Code, adopted in 2009. The CJEU has clarified some key points of the Code, ruling that: in effect it creates a right to a visa if the conditions are satisfied, although Member States have flexibility over how to apply those conditions (Koushkaki, discussed here); there must be a possibility of judicial review as part of the appeal process (El-Hassani); and “safe passage” visas are not covered by the Code (X and X).

The Code concerns “Schengen visas”, ie visas which allow travel across the entire Schengen area. As such it applies to the EU countries fully applying the Schengen rules (all Member States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well as the non-EU Schengen associates: Norway, Iceland, Switzerland and Liechtenstein.

The list of non-EU countries whose citizens do (or do not) need a visa to visit the Schengen area is set out in a separate visa list Regulation (the plans for visa waivers for Turkey and Kosovo are on hold). EU policy is to waive visa requirements for nearby countries, subject to a (loosely-enforced) requirement for reciprocity, so it is likely that UK citizens will not need a visa to visit the EU after Brexit. However, EU legislation to set up a “travel authorisation” system, about to be adopted (see discussion here), will apply to all non-EU countries with a visa waiver but without a free movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested and agreed. A travel authorisation is similar to a visa in that it requires a prior authorisation to travel, but will cost less and be valid for much longer.

2014 proposals

As noted above, the ill-fated 2014 proposal to amend the visa code was focussed on economic issues, in particular aiming to facilitate tourism. A parallel proposal for a “touring visa” would have provided for an extended stay for those visiting multiple Member States for a longer period, as part of an orchestra or circus, for instance. (I discussed the details of both proposals here). The 2014 proposal also included provisions on facilitating the travel of EU citizens’ non-EU family members (discussed here), and, as noted already, it was an opportunity to argue for explicit “safe passage” rules to be added to the rules (as discussed here).

2018 proposal

The Commission withdrew both 2014 proposals in light of the negotiation deadlock, and tabled a revised visa code proposal in March 2018. (It did not try to revive the “touring visa” proposal). This was met with much interest in the Council, which adopted a negotiation position on the proposal already by June 2018. The European Parliament is taking a more leisurely approach, so has no position yet. (Note that the Commission has also suggested a revision of the law governing the related database, the Visa Information System, which would, among other things, provide for fingerprinting 6-year-old visa applicants, and extend that system to apply to long-stay visas and residence permits). 

The Commission’s 2018 communication on visa policy is a good overview of the purposes of the recent proposal. In addition to the main focus on security – which takes the form of penalties for non-EU countries that do not cooperate with the EU on readmission policy – it contains a limited number of simplifications for legitimate travellers. The Commission has dropped the proposals to simplify travel for EU citizens’ family members, and has made more suggestions to simplify the rules on multiple entry visas as compared to 2018.

The Council’s position

Compared to the Commission’s proposal, the Council has reserved for itself the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, and slowing down processing times), following a diplomatic process in which the EU will threaten these sanctions if no cooperation is forthcoming. (It’s already EU policy to link treaties simplifying the issue of visas to readmission treaties, but this policy will now become unilateral, and take the form of sticks, rather than carrots).

On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three. The Council rejected the Commission’s proposal to let NGOs apply for visas on behalf of their staff. The visa application fee will rise from €60 to €80, and from €35 to €40 for 6-12 year olds. The Commission will have the power to revise the fee every three years. Member States’ option to waive the fee for diplomats is dropped. The new “punishment” clause will raise the visa application fee to €120 or €160 for travellers from countries that are judged not to cooperate on migration.

Multiple entry visas lasting for one, two or five years will be available, based on prior lawful use of a visa. The Council dropped the Commission’s proposal to refer to judicial review in the event of an appeal against refusal of a visa, but this cannot change the legal obligation to provide for such a review, since the CJEU ruling on this issue (El-Hassani, noted above) based this obligation on EU primary law: the EU Charter of Fundamental Rights.  The Commission proposal to issue visas at the border in order to encourage tourism has been dropped by the Council, and the current law’s possibilities of having “co-location” and “common application centres” are dropped, as they have been overtaken by events – the trend of outsourcing the visa application process to private entities. As a partial substitute, the revisions will simplify the rules which apply when one Member State represents another one for visa applications.

Comments

It remains to be seen whether the European Parliament will go along with these amendments, or whether it will seek to retain some of the simplification of travel rules which the Commission initially proposed in 2014, for instance for EU citizens’ family members. (Such rules, if agreed, will only briefly be helpful for UK citizens’ non-EU family members, before the end of the post-Brexit transition period).  The Parliament might also try to address the “safe passage” issue again, and it has traditional concerns about limiting fee increases for vulnerable groups like children. The visa code amendments might be linked in practice to the proposals to turn the Visa Information System into an even bigger Panopticon.

However, some version of the readmission punishment clauses are likely to go through, as they are part of the EU arsenal of stricter migration control policies (along with greater internal and external border checks, an expanded Frontex border control body, and agreements with countries like Turkey to control and take back asylum seekers and migrants). Whether they will be effective remains to be seen; there will presumably still be ‘carrots’ from the EU-Africa funds offered to States which cooperate with the EU’s increasing attempts at “remote control” of migration. Whether the new policy will work in practice, or – even if they do work – satisfy those voters who already remain angry despite hugely reduced migration flows, equally remains to be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: schengenvisainfo.com

“Dear Colleague, Are You Independent Enough?” The Fate of the Principle of Mutual Trust in Case of Systemic Deficiencies in a Member State’s System of Justice

By Cecilia Rizcallah*

*Research Fellow at the Belgian National Fund For Scientific Research (F.R.S.-FNRS). The author wishes to thank Pr. S. Van Drooghenbroeck. The usual disclaimer applies.

Advocate General Tanchev delivered, a few days ago, his opinion in the case C-216/18 PPU concerning a set of European Arrest Warrants (EAWs) issued against LM, suspected of drug trafficking, by the Polish Authorities. The case concerns a reference for a preliminary ruling made by the Irish High Court, which questions the European Court of Justice (ECJ) on the obligation to execute a EAW when the “conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law”.

Context of the case

This case emerges in the context of the “rule of law crisis”, resulting from recent reforms threatening EU’s founding values in some Member states including, among others, Poland. The Venice Commission together with other organisations have indeed observed the existence of serious breaches of the rule of law, notably due to the reform of its judiciary which highly undermines its independency. Ensuing this crisis and the lack of improvement of the situation in Poland, the Commission issued, in December 2017, a reasoned proposal in accordance with Article 7(1) TEU proposing to the Council to assert the existence of a clear risk of a serious breach of the rule of law in Poland.

No concrete action has yet been taken pursuant to this opinion, notably because of the heavy conditions laid down in Article 7 and the lack of other proper tools to react to such events. Brussels has thus until now been unable to offer a collective and efficient response to this crisis and the first consequences on EU integration begin to pop up.  The ECJ in that respect ruled two weeks ago that Poland had breached the Railway Safety Directive (Directive 2001/14/EC) because of the lack of independency of its investigating body of railway undertakings and infrastructures. It is now the turn of the mechanism of the EAW to face the difficulties triggered by the rule of law crisis in one of the Member States.

As a reminder, the European Arrest Warrant mechanism, enshrined in the Council Framework Decision of 13 June 2002 (hereafter the Framework decision), relies upon the principle of mutual trust, which presumes the respect by all the Member States of EU founding values listed in Article 2 TEU, including the rule of law and human rights. This presumption justifies the quasi-automaticity of the execution of EAWs, and prevents in principle the control of the respect of fundamental rights by the executing Member State. The executing national authority has to “trust” the admissibility of EAWs issued by its peers.

According to the settled case-law of the ECJ, the grounds for non-execution of a EAW are exhaustively listed in the Framework Decision and must be restrictively construed because of the principle of mutual trust. Yet, fundamental rights are not explicitly included among the grounds for refusal in the Framework decision. Relying upon the principle of mutual trust and for the sake of the EAW mechanism’s effectiveness, the ECJ has long been reluctant to allow national courts to control the respect of fundamental rights when requested to execute a EAW.

A first breach was nevertheless opened by the Aranyosi and Căldăraru judgment (discussed here), where the ECJ considered that, in very exceptional circumstances, the execution of a EAW may be postponed when the individual would face a real risk of inhuman or degrading treatment in the issuing Member State in case of surrender because of the detention conditions in this country. It developed a two-step approach to determine the existence of such risk: first, the executing authority must be “in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State” (§89)  and, “whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” (§92).

According to the Court, the requested authority must, to that end, “request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State” pursuant to Article 15(2) of the Framework Decision (§95).

The question in C-216/18 PPU

The question posed in Case C-216/18 was whether the rule of law crisis and the systemic deficiencies in the Polish judicial system could justify the refusal of execution of a EAW issued by this Member State. More precisely, the Irish judge asked the ECJ whether the Aranyosi and Căldăraru double test leading to the suspension of EAWs’ execution should apply in case of systemic breach of the rule of law.  This case thus appears to be an occasion to the ECJ to provide some of the missing pieces in the puzzle of tolerated limitations to the principle of mutual trust.

Unlike the Aranyosi and Căldăraru case, the question raised in the case C-216/18 concerns structural deficiencies in a Member State’s system of justice and risk of breaches of a non-absolute right, the right to a fair trial (Article 47 of the Charter). Sensitive issues are moreover at stake, in relation to the controversial reforms adopted in Poland. Political reactions have not been slow in coming.

The Advocate General’s opinion

A few days ago, the Advocate General Tanchev issued its opinion which, in a nutshell, pleads for the adoption of the Aranyosi and Căldăraru double test in the case at hand. The Advocate General started its reasoning by differentiating the assessment that should, according to him, be applied in the present case and the one that should be carried out by the Council under Article 7(1) TEU. Indeed, “the referring court asks the Court of Justice whether, in order for it to be required to postpone the execution of a European arrest warrant, it is sufficient for it to find that ‘conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself [of that Member State] is no longer operating under the rule of law” (§39).

The Court is therefore, according to the Advocate General, not asked about the consequences of breach of the value constituted by the rule of law, but about consequences of breach of the right to a fair trial. By this statement, the Advocate General offers an appealing way-out allowing the ECJ not to generally pronounce itself generally on the current sensitive political issue of the rule of law crisis in Poland. This finding moreover seems in compliance with the will of the treaties, Article 269 TFEU excluding the competence of the ECJ to rule on the legality of the acts adopted under Article 7 TEU, except for procedural concerns.

In the opinion of the Advocate General, different consequences must moreover be triggered from the activation of Article 7 and from the Aranyosi and Căldăraru judgement. On the one hand, the finding, in a specific case, of the existence of a real risk of breach of the prohibition of inhuman or degrading treatment obliges the executing judicial authority to postpone the execution of the EAW at issue. On the other hand, the suspension of the whole EAW system in respect of a Member State may only occur if the Council so decides, pursuant Article 7 (3) TEU, on the basis of the existence of a breach, and not of a mere risk of breach, of EU founding values (recital 10 of the Framework decision).

After these preliminary observations, the Advocate General continued its reasoning by  sketching out the way the Aranyosi and Căldăraru test should be applied in the case at hand. First, he addressed the question of the possibility to postpone the execution of a EAW for protecting non-absolute rights. According to him, the fact that only limitations on the principle of mutual trust have hitherto been accepted in the light of Article 4 of the Charter does not precludes a similar conclusion when other rights, such as the right to a fair trial, are at stake (§58). Nevertheless, given the importance of the principle of mutual trust, “it is not sufficient that there is a real risk of breach of the second paragraph of Article 47 of the Charter in the issuing Member State” (emphasis added, the Advocate General interestingly did not use the word “restriction” but “breach”).

The postponing of an EAW may only occur when there exists a “real risk of breach not of the right to a fair trial but of the essence of that right” (§76) amounting to “a flagrant denial of justice” (§80). Having regard to the independence of the judiciary, the Advocate General underlined that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial” (§93). Assessing the existence of such risk, the executing judicial authority must “rely on information which is objective, reliable, specific and properly updated on the conditions prevailing in the issuing Member State, and which demonstrates that there are deficiencies affecting the Polish system of justice” (§95), such as the Venice Commission’s reports or the Commission’s reasoned opinion.

Yet, in the Advocate General’s opinion, such finding is however not sufficient for deciding the postponing of a EAW. The executing judicial authority must, moreover, ascertain that “in the case in point”, the individual concerned will be exposed to that risk (§104), by examining the particular circumstances relating either to that person or to the offence (113). It should notably be ascertained whether the individual is a “political opponent or whether he is a member of a social or ethnic group that is discriminated against” and/or if “the offence for which the individual concerned is being prosecuted is political in nature or whether the powers that be have made public declarations concerning that offence or its punishment” (§113). The burden of proof shall lie on the individual concerned (§115). In the assessment of the individual risks faced by the requested person, the executing judge must moreover request, from the issuing judicial authority, all necessary supplementary information on the basis of Article 15(2) of the Framework Decision “concerning, first, legislation adopted after the Commission’s reasoned proposal and the opinions of the Venice Commission and, second, the particular features relating to the individual concerned and to the nature of the offence that would be liable to expose him to the real risk of flagrant denial of justice identified” (§128).  Eventually and “in the light of the information obtained” the executing judicial authority must execute the warrant if it considers that the person subject to the EAW does not run a real risk of suffering a flagrant denial of justice in the issuing Member State or, on the contrary, postpone its execution if such risk exist (§§130 – 131).

Comments

In spite of current events attesting the serious endangerment of EU founding values in several Member States, the Advocate General’s opinion sounds like a plea for the safeguard at any price of a – yet no longer existing –  trust between Member States. It calls for a few comments. 

First, the Advocate General pleads for distinguishing the examination of the existence of a rule of law crisis which systematically threatens the independence of the Polish judiciary and the assessment of the respect of the right to a fair trial in Poland. It is true that both procedures differ from their nature, one being political the other judicial as well from their object, one concerning the serious and persistent breach of the EU’s founding values and the other the right to a fair trial. Nevertheless, the risks in terms of Human rights in the case at hand precisely result from the systemic violation of the value of the rule of law. The alleged risks do not consist in a punctual breach of the right to a fair trial in relation to the specific case at hand, but in structural deficiencies in the Polish judicial system presenting risks for the fairness of its trials. If both assessments differ in their nature, their object must, in our view, not be addressed in isolation. According to the Advocate General, both procedures do also trigger different consequences. It is only if the Council observes the breach – and not the mere existence of a risk of breach – of EU founding values that the EAW mechanism could possibly be suspended. This finding suggests low likelihood that the EAW procedure would ever be suspended given the inefficiency of the Article 7 procedure, attested by recent events, as well as the poor probability to reach the required unanimity at the Council.  

Secondly, the systemic character of the judicial system’s deficiencies does not suffice in the view of the Advocate General to justify the non-execution of Polish EAWs.  Relying upon the ruling in Aranyosi and Căldăraru, he considers that a refusal to surrender an individual may only occur when (i) there exists a risk of breach of the right to a fair trial’s essential content amounting to a flagrant denial of justice and (ii) the requested person individually faces the risk to be subject to this breach.  In relation to the first condition, the Advocate General thus clearly gives priority to the principle of mutual trust over the protection of fundamental rights, since not any breach of these rights could compromise in his view the execution of a EAW. This finding contrasts with the ECJ’s ruling in Tupikas, where it held that “the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned” (emphasis added), as well as the Framework Decision’s preamble, which underlines that it respects fundamental freedoms.

The Advocate General refers to the ECtHR case law about extradition procedures in order to reach this conclusion. The ECtHR indeed several times relied upon the “flagrant denial of justice” concept in order to determine the responsibility of a Contracting Party which indirectly enabled or gave effect to the breach of important components of fundamental freedoms by third parties (see, for instance, ECtHR 26 June 1992, Drozd and Janousek v. France and Spain, § 110,). Nevertheless, it is worth nothing that the case-law on this issue is not consistent, as shown by the judgment in Pellegrini v Italy where the fact that the judgment was rendered by a third party – the Vatican –  justified, according to this to the ECHR, a full control of the respect of Article 6 by the executing Italian judge.

Moreover, this test was only used in regard to extradition procedures with third States, based on the reasoning that “the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (ECtHR 7 July 1989, Soering v. United Kingdom, § 86). Yet, the case at hand concerns the cooperation between two Member States of the Council of Europe and moreover, of the European Union. Moreover, one should wonder why violations (not mere restrictions) of Article 47 of the Charter must, for the sake of the principle of mutual trust, be accepted in the EU while this principle is precisely founded on the presumption of compliance, by all Member States, with fundamental rights as enshrined in the Charter. The ECtHR seems nevertheless to consent to the principle of mutual trust in its Avotins judgement (discussed here), at least as long as Member States are “empowered to conduct a review commensurated with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient” (ECtHR 23 May 2016, Avotins v. Latvia, §114). This case did not concern the EAW mechanism but the mutual recognition in civil proceedings, where guarantees contained in Article 6 apply less stringently than to criminal proceedings.  

As far as the second condition is concerned, the Advocate General requires the maintenance of an individual assessment consisting in first, the examination of the nature of the alleged offence and the individual’s profile and, secondly, in an exchange of information between the issuing the executing authority. He moreover considers that the burden of the proof of the risk lies on the requested individual. This is maybe the most critical part of the opinion.  First, regarding  the object of this assessment. The executing judge would indeed be required to postpone the execution of a EAW, according to the Advocate General, “only where it finds not only that there is a real risk of flagrant denial of justice on account of deficiencies affecting the system of justice of the issuing Member State but also that the individual concerned will be exposed to that risk”.

It must in that regard consider notably the nature of the alleged offence as well as the profile of the person subject to the EAW, and especially, whether he is a political opponent or whether he is a member of a social or ethnic group that is discriminated against in the issuing country (§113). Yet, the possibility to refuse to surrender persons convicted for political offences has been especially removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – when replaced by the Framework decision (see discussion here). Furthermore, requesting the individual to demonstrate the lack of independence of the tribunal in his or her specific case seems to disregard the traditional case law of the ECHR, according to which serious doubts that an individual will not benefit from a fair trial by an independent and impartial tribunal may lead to a violation of Article 6 of the ECHR (ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §78).

In this way, the mere existence of mechanisms enabling the executive branch of a State to influence court proceedings, even if they have not been effectively used in the case at hand, suffice, in the view of the ECtHR, to find a breach of the right to a fair trial (ECtHR, 19 April 1994, Van De Hurk v. The Netherlands, §50 and ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §§ 77 and 80). The approach proposed by the Advocate General also contravenes the “doctrine of appearance” (ECtHR, 17 January 1970, Delcourt v Belgium, §31 and Kress v France, 7 June 2001, §81), usually adopted by the ECtHR, which attaches great importance to “appearances and to the increased sensitivity of the public to the fair administration of justice” (ECtHR, 30 October 1991, Borgers v. Belgium, §24).

Indeed, according to this doctrine, “justice must not only be done, it must also seem to be done”, and “importance should be given to the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused” (ECtHR, 9 June 1998 Incal v. Turkey, §71). Speculations about the effective independent character of a tribunal in a specific case should thus not be needed when important deficiencies in the rule of law such as those at issue exist.  The inadequacy of such test is furthermore strengthened by the way the requested judge should determine the existence of a risk of breach of the right to a fair trial. The opinion indeed proposes to require from the executing authority, before deciding upon the execution of the EAW, “to ask the necessary information to that end to the issuing judge”. One may indeed wonder how a judge - whose independence is challenged – would provide reliable information on…his or her own independence!

New playground, new rules of the game?

The principle of mutual trust constitutes an important tool of EU integration, used both in the internal market and in the Area of freedom, security and justice. In relation to the EAW system, it enables effective and smooth criminal cooperation between Member States without the merging of their national criminal systems of justice nor uniformisation of their national criminal law. Nevertheless, this principle was developed on the presumption that only democratic systems, respecting EU’s founding values including fundamental rights were involved. The importance of the respect of the rule of law was in that sense recently recalled by the ECJ in its case law Associação Sindical dos Juízes Portugueses (ECJ, 27 February 2018, discussed here). One must however note the lack of discipline of some Member States to comply with this value, despite numerous diplomatic attempts to stop the crisis. Should we nevertheless maintain the obligation for Member States to trust in each other’s system of justice notwithstanding these events?

The principle of mutual trust, of fundamental importance to EU law, relies upon the presumption that Member States share and respect a set of common values (ECJ, 18 December 2014 Opinion 2/13, §168). Firmly upholding this principle while its foundations are undermined seems problematic. Once the playground has changed, shall the initial rules of the game be kept? Besides being as such problematic for the State concerned by the crisis, imposing mutual trust to other States entails an important risk of contagion in all the European Union since national judgments are mutually recognised. In addition, one should bear in mind the rights at stake, which include the right of judicial protection rightly referred to as “the right to have right”.  This right furthermore amounts to, according to the ECJ, the essence of the rule of law (ECJ, 27 February 2018, Associação Sindical dos Juízes Portugueses, §36).

Admittedly, the current “rule of law crisis” constitutes first and foremost a political issue that has to be dealt with by political bodies such as the Council as provided by Article 7 TEU. Nonetheless, the ECJ must ensure the respect of EU law and, in particular, of the Charter of Fundamental Rights which is part of primary law. When construing the Framework Decision, the Court shall therefore – at least theoretically – ensure the respect of EU Fundamental Rights and in particular of the right to an effective judicial protection. In our view, the principle of mutual trust, being it a fundamental principle, shall not justify restrictions to fundamental rights that do not respect the conditions laid down in Article 52 of the Charter which not only requires the respect of the essential content of fundamental rights, but, also, a more general proportionality assessment.

Barnard & Peers: chapter 9

JHA4 : chapter II :3

Photo credit : Human Rights Watch

UK citizens in the EU after Brexit: Securing unilateral guarantees after a ‘no deal’ Brexit

Professor Steve Peers, University of Essex*

What happens to EU27 citizens and UK citizens who have moved within the EU in the event of a ‘no deal’ Brexit? In principle their position will be regulated by the withdrawal agreement under negotiations, but since it seems that talks on this agreement are becomingly increasingly difficult the possibility of the UK leaving the EU without any such agreement may have risen. This would leave the two groups of people in limbo, unless an alternative approach to securing their acquired rights is found.

It’s possible that a separate agreement on their rights could be agreed between the UK and the EU: I have suggested a text for such a “ring-fenced” deal here. Another alternative is matching unilateral guarantees. The EU Withdrawal Act, which recently came into force, retains EU27 citizens’ rights in UK law for the time being, and the UK government has already tabled planned changes to the Immigration Rules to give effect to it. This could be matched by national law guarantees for UK citizens in the EU27 States, but for the sake of legal security a better approach would be EU-wide legislation on the issue.

I suggest here a draft Regulation to give effect to that idea. (Denmark would not be covered, so would have to act unilaterally; Ireland could opt in). It is based on the text of the withdrawal agreement (which I commented on here), with several adaptations: retaining free movement for UK citizens who registered under the new system; a cut-off of the withdrawal date (Brexit day), on the assumption that there would be no transition period; and references to UK citizens and their family members only, except where EU27 citizens have been covered by the UK social security system and need recognition of those prior contributions.

It might be questioned whether the EU has the legal competence to adopt laws treating a Member State as a non-Member State before it leaves. However, the Commission has already made several legal proposals on the assumption that the UK is leaving, and if those proposals are legally sound it should follow that this one is also, provided that it does not apply until the withdrawal date. In the event that it were only adopted after the withdrawal date, it could be backdated to ensure that no UK citizens or their family members will be treated as illegal residents. The Regulation would be based on Article 79 TFEU, which gives the EU power to adopt legislation on the legal migration status of non-EU citizens. Although the EU cannot harmonise national law on the numbers of people coming from non-EU countries to seek work (Article 79(5)), this Regulation would concern non-EU citizens already resident on the territory.

Barnard & Peers: chapter 27

Photo credit: ITV news

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

TITLE I

GENERAL PROVISIONS

Article 1

Objective

This Regulation sets out the rights of United Kingdom nationals and their family members, who exercised rights pursuant to European Union law before the withdrawal of the United Kingdom from the European Union.

Article 2

Definitions

For the purposes of this Regulation, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means:

(i) family members of Union citizens or United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council;

(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive them of a right of residence granted by this Regulation;

irrespective of their nationality and who fall within the personal scope provided for in Article 3 of this Regulation; 

(b) "frontier workers" means United Kingdom nationals who pursue an economic activity in accordance with Article 45 or 49 TFEU in one or more States in which they do not reside;

(c) "host State" means the Member State in which the United Kingdom nationals exercised their right of residence in accordance with Union law before the withdrawal date and continue to reside there thereafter;

(d) "State of work" means a Member State in which the United Kingdom nationals pursued an economic activity as frontier workers before the withdrawal date and continue to do so thereafter;                                                    

(e) "rights of custody" means rights of custody within the meaning of point (9) of Article 2 of Council Regulation (EC) No 2201/2003, including rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.  

(f) "Member States" means the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden;

(g) "Union citizen" means any person holding the nationality of a Member State;

(h) "United Kingdom national" means a national of the United Kingdom, as defined in the New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland of 31 December 1982 on the definition of the term ‘nationals’1 together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(i) "withdrawal date" means the date on which the United Kingdom ceased to be a Member State, in accordance with Article 50 of the Treaty on European Union.

Article 3

Personal scope

1.  Without prejudice to Title III, this Regulation shall apply to the following persons: 

(a) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the withdrawal date and continue to reside there thereafter; 

(b) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the withdrawal date and continue to do so thereafter; 

(c) family members of the persons referred to in points (a) to (b), where they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the withdrawal date and continue to reside there thereafter;

(ii) they were directly related to a person referred to in points (a) to (d) of this paragraph and resided outside the host State before the withdrawal date, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Regulation in order to join the person referred to in points (a) to (d) of this paragraph;

(iii) they are born to, or legally adopted by, persons referred to in points (a) to (d) after the withdrawal date, whether inside or outside the host State, where they fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Regulation in order to join the person referred to in points (a) to (d) of this paragraph and fulfil one of the following conditions:

 - both parents are persons referred to in points (a) to (d);

 - one parent is a person referred to in points (a) to (d) and the other is a national of the host State; or       

 - one parent is a person referred to in points (a) to (d) and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of a Member State, including applicable rules of private international law under which rights of custody established under the law of a third state are recognised in the Member State, in particular as regards the best interests of the child and without prejudice to the normal operation of such applicable rules of private international law;

[footnote: The notion of rights of custody is to be interpreted in accordance with point (9) of Article 2 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Therefore, it covers rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.]

(d) family members who resided in the host State in accordance with Articles 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the withdrawal date and continue to reside there thereafter.

2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the withdrawal date in accordance with Article 3(2) of Directive 2004/38/EC shall retain their right of residence in the host State in accordance with this Regulation provided they continue to reside in the host State thereafter.

3. Paragraph 2 also applies to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the withdrawal date, and whose residence is facilitated by the host State in accordance with its national legislation after that date.

4. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) has a durable relationship, duly attested, and who resided outside the host State before the withdrawal date, provided that the relationship was durable before the withdrawal date and continues at the time the partner seeks residence under this Regulation.

5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to such persons.  

Article 4

Continuity of residence

Continuity of residence for the purposes of Articles 2 and 3 shall not be affected by absences as referred to in Article 8(2).

The right of permanent residence acquired under Directive 2004/38/EC before the withdrawal date shall not be treated as lost through absence from the host State for a period specified in Article 8(3).                                                     

Article 5

Non-discrimination

Within the scope of this Regulation and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 3 of this Regulation.

 

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 6

Residence rights

1. United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC. 

2. Family members who are United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

3. Family members who are not United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

4.  The host State may not impose any limitations and conditions other than those provided for in this Title on the persons referred to in paragraphs 1, 2 and 3 for obtaining, retaining or losing residence rights. There shall be no discretion in applying the limitations and conditions, other than in favour of the person concerned.  

Article 7

Right of exit and of entry

1. United Kingdom nationals, their respective family members and other persons, residing in its territory in accordance with the conditions set out in this Title shall have the right to leave the host State and the right to enter it as set out in Articles 4(1) and 5(1) first paragraph of Directive 2004/38/EC with a valid passport or national identity card for United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals.

After five years following the withdrawal date, the host State may decide no longer to accept a national identity card to enter or exit its territory, if the respective national identity card does not include a chip compliant with the applicable International Civil Aviation Organisation standards related to biometric identification. 

2. No exit or entry visa or equivalent formality shall be required for holders of a valid document issued in accordance with Article 11 or 19 of this Regulation.

3.  Where the host State requires family members who join the United Kingdom national after the withdrawal date to have an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.  

Article 8

Right of permanent residence

1.  United Kingdom nationals and their family members who have resided legally in accordance with Union law for a continuous period of five years in the host State, or for the duration specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the withdrawal date shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

2.  Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.

3.  Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.

Article 9

Accumulation of periods

United Kingdom nationals and their family members who before the withdrawal date resided legally in the host State under the conditions of Article 7 of Directive 2004/38/EC for a period of less than five years, shall have the right to acquire the right to reside permanently under the conditions set out in Article 8 of this Regulation once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with Union law before and after the withdrawal date shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.  

Article 10

Status and changes

1.  The right of United Kingdom nationals and their family members to rely directly on this Regulation shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the withdrawal date, enjoy a right of residence in their capacity as family members of United Kingdom nationals cannot become persons referred to in points (a) to (d) of Article 9(1).

2.  The rights provided for in this Title for the family members, who are dependent on United Kingdom nationals before the withdrawal date, shall be maintained even after they cease to be dependent.  

Article 11

Issuance of residence documents

1.  The host State may require United Kingdom nationals, their family members and other persons residing in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.

Applying for such a residence status shall be subject to the following conditions:

(a) the purpose of the application procedure shall be to verify whether the applicant is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing it;

(b) the deadline for submitting the application shall not be less than 6 months from the withdrawal date for persons residing in the host State before the withdrawal date. 

The deadline for persons who have the right to commence residence in the host State in accordance with this Regulation shall be 3 months after their arrival or expiry of the deadline referred to in the first subparagraph, whichever is later.

A certificate of application for the residence status shall be issued immediately;

(c) the deadline for submitting the application referred to in point (b) shall be extended automatically by one year where a Member State has notified Commission that technical problems prevent that State either from registering the application or from issuing the certificate of application referred to in point (b). That Member State shall publish that notification and shall provide appropriate public information for the citizens or nationals concerned in good time;

(d) where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and allow those persons to submit an application within a reasonable further period of time, where there are reasonable grounds for the failure to respect the deadline;

(e) the host State shall ensure that administrative procedures for applications are smooth, transparent and simple and that any unnecessary administrative burdens are avoided;

(f) application forms shall be short, simple, user friendly and adjusted to the context of this Regulation; applications made by families at the same time shall be considered together;

(g) the document evidencing the status shall be issued free of charge or for a charge not exceeding that imposed on citizens or nationals for the issuing of similar documents;

(h) persons who, before the withdrawal date, are holders of a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside in the host State, shall have the right to exchange that document within the period referred to in point (b)for a new residence document upon application after a verification of their identity, a criminality and security check in accordance with point (p) of this paragraph and confirmation of ongoing residence; such a document shall be free of charge;

(i) the identity of the applicants shall be verified through the presentation of a valid passport or national identity card for United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals; the acceptance of such identity documents shall not be made conditional upon any criteria other than that of validity. Where the identity document is retained by the competent authorities of the host State while the application is pending, the host State shall return that document upon application without delay and before the decision on the application is taken;

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy. Originals of supporting document can be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted;

(k) the host State may only require United Kingdom nationals to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(3) of Directive 2004/38/EC:

(i) where they reside in the host State in accordance with Article 7(1)(a) of Directive 2004/38/EC as workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed;

(ii) where they reside in the host State in accordance with Article 7(1)(b) of Directive 2004/38/EC as economically inactive persons, evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence and have comprehensive sickness insurance cover in the host State;

(iii) where they reside in the host State in accordance with Article 7(1)(c) of Directive 2004/38/EC as students, proof of enrolment at an establishment accredited or financed by the host State on the basis of its legislation or administrative practice, and of comprehensive sickness insurance cover and a declaration or equivalent, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence. The host State may not require this declaration to refer to any specific amount of resources.

With regard to the condition of sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;

(l) the host State may only require family members who fall under Articles 3(1)(e)(i), 3(2) or 3(3) of this Regulation and who reside in the host State in accordance with Article 7(1)(d) or 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals with whom they reside in the host State;

(iii) for direct descendants who are under the age of 21 or are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in Article 2(2)(c) or (d) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to in Article 3(2) or (3) of this Regulation, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC.

With regard to the condition of sufficient resources as concerns family members who are themselves Union citizens or United Kingdom nationals, Article 8(4) of Directive 2004/38/EC shall apply;

(m) the host State may only require family members who fall under Articles 3(1)(e)(ii) or 3(4) of this Regulation, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) and 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals whom they are joining in the host State;

(iii) for spouses or registered partners, a document attesting to the existence of a family relationship or of a registered partnership before the withdrawal date;

(iv) for direct descendants who are under the age of 21 or are dependants and dependent direct relatives in the ascending line and those of the spouse or registered partner, documentary evidence that they were related to Union citizens or United Kingdom nationals before the withdrawal date and fulfil the conditions set out in Article 2(2)(c) or (d) of Directive 2004/38/EC relating to age or dependence;

(v) for the persons referred to in Article 3(4) of this Regulation, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the withdrawal date and continues to exist thereafter;

(n) for cases other than those set out in points (k), (l) and (m), the host State shall not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under this Title have been fulfilled;

(o) the competent authorities of the host State shall help the applicants prove their eligibility and avoid any errors or omissions in the application; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omission;

(p) criminality and security checks may be carried out systematically on applicants with the exclusive aim of verifying whether restrictions set out in Article 13 of this Regulation may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, should it consider this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC on enquiries to other States regarding previous criminal records;

(q) the new residence document shall include a statement that it has been issued in accordance with this Regulation;

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status.

The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. They shall ensure that the decision is not disproportionate.

2.  During the period referred to in point (b) of paragraph 1 of this Article and its possible one-year extension under point (c) of paragraph 1 of this Article, all rights provided for in this Regulation shall be deemed to apply to United Kingdom nationals, their family members, and other persons residing in the host State in accordance with the conditions and subject to the restrictions set out in Article 13.

3. Pending a final decision by the competent authorities on any application referred to in paragraph 1, as well as a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Regulation shall be deemed to apply to the applicant, including Article 14 on safeguards and right of appeal, subject to the conditions set out in Article 13(4).

4. Where a host State has chosen not to require United Kingdom nationals, their family members, and other persons residing in its territory in accordance with the conditions set out in this Title, to apply for the new residence status referred to in paragraph 1 as a condition for legal residence, those eligible for residence rights under this Title shall have the right to receive, in accordance with the conditions set out in Directive 2004/38/EC, a residence document which may be in a digital form that includes a statement that it has been issued in accordance with this Regulation.  

Article 12

Issuance of residence documents during the transition period

1.  A host State may allow applications for a residence status or a residence document as referred to in Article 17(1) and (4) to be made voluntarily from the date of entry into force of this Regulation.

2.  A decision to accept or refuse such an application shall be taken in accordance with Article 11(1) and (4). A decision under Article 11(1) shall have no effect until the withdrawal date. 

3.  If an application under Article 11(1) is accepted before the withdrawal date, the host State may not withdraw the decision before that date on any grounds other than those set out in Chapter VI and Article 35 of Directive 2004/38/EC.

4.  If an application is refused before the withdrawal date, the applicant may apply again at any time before the expiry of the period set out in Article 11(1)(b).

5.  Without prejudice to paragraph 4, redress procedures under Article 11(1)(r) shall be available from the date of the decision.  

Article 13

Restrictions of the right of residence

1.  Conduct of United Kingdom nationals, their family members or other persons exercising rights under this Title, that occurred before the withdrawal date shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2.  Conduct of United Kingdom nationals, their family members or other persons exercising rights under this Title, that occurred after the withdrawal date may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

3. The host State or the State of work may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Title in the case of abuse of those rights or fraud as set out in Article 35 of Directive 2004/38/EC. Such measures shall be subject to the procedural safeguards provided for in Article 14 of this Regulation.

4. The host State or the State of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in Directive 2004/38/EC, in particular Articles 31 and 35 thereof, even before a final judgment has been handed down in case of judicial redress sought against any rejection of such an application.  

Article 14

Safeguards and right of appeal

The safeguards set out in Article 15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any decision of the host State that restricts residence rights of the persons referred to in Article 3 of this Regulation.  

Article 15

Related rights

In accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the family members of a Union citizen or a United Kingdom national who have the right of residence or the right of permanent residence in the host State or the State of work shall be entitled to take up employment or self-employment there.  

Article 16

Equal treatment

1. In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in Titles I, II and IV of this Regulation, all United Kingdom nationals residing on the basis of this Regulation in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Regulation. The benefit of this right shall be extended to family members of United Kingdom nationals and who have the right of residence or permanent residence.

2. By way of derogation from paragraph 1, the host State shall not be obliged to confer entitlement to social assistance during residence in accordance with Articles 6 or 14(4)(b) of Directive 2004/38/EC, nor shall it be obliged, prior to acquisition of the right of permanent residence in accordance with Article 8 of this Regulation, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

CHAPTER 2

Rights of workers and self-employed persons

Article 17

Rights of workers

1.  Subject to the limitations set out in Article 45(3) and (4) TFEU, workers in the host State and frontier workers in the State or States of work shall enjoy the rights guaranteed by Article 45 TFEU or granted by Regulation (EU) No 492/2011 of the European Parliament and of the Council. These rights include:

(a) the right not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment;

(b) the right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host State or the State of work;

(c) the right to assistance afforded by the employment offices of the host State or the State of work as offered to own nationals;

(d) the right to equal treatment in respect of conditions of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or re-employment;

(e) the right to tax and social advantages;

(f) collective rights;

(g) the rights and benefits accorded to national workers in matters of housing;

(h) the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host State or the State of work, if such children are residing in the territory where the worker works.

2.  Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

3. Employed frontier workers shall enjoy the right to enter and exit the State of work in accordance with Article 7 and shall retain the rights they enjoyed as workers there in accordance with Article 7(3) of Directive 2004/38/EC.  

Article 18

Rights of self-employed persons

1.  Subject to the limitations set out in Articles 51 and 52 TFEU, self-employed persons in the host State and self-employed frontier workers in the State or States of work shall enjoy the rights guaranteed by Articles 49 and 55 TFEU. These rights include:

(a) the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down by the host State for its own nationals, as set out in Article 49 TFEU;

(b) the rights as set out in points (c) to (h) of Article 17(1) of this Regulation.

2.  Article 17(2) shall apply to direct descendants of self-employed workers.

3. Article 17(3) shall apply to self-employed frontier workers, without prejudice to Article 27 concerning the scope of rights.  

Article 19

Issuance of a document identifying frontier workers' rights

The State of work may require United Kingdom nationals who have rights as frontier workers under this Title to apply for a document certifying that they have such rights under this Title. Such United Kingdom nationals shall have the right to be issued with such a document.

CHAPTER 3

Professional qualifications

Article 20

Recognised professional qualifications

1.  The recognition, before the withdrawal date, of professional qualifications, as defined in point (b) of Article 3(1) of Directive 2005/36/EC of the European Parliament and of the Council, of United Kingdom nationals and their family members by their host State or their State of work shall maintain its effects in the respective State, including the right to pursue the profession under the same conditions as its nationals, where such recognition was made in accordance with any of the following provisions:

(a) Title III of Directive 2005/36/EC in respect of the recognition of professional qualifications in the context of the exercise of the freedom of establishment, whether such recognition fell under the general system for the recognition of evidence of training, the system for the recognition of professional experience or the system for the recognition on the basis of coordination of minimum training conditions;                                                        

(b) Article 10(1) and (3) of Directive 98/5/EC of the European Parliament and of the Council in respect of gaining admission to the profession of lawyer in the host Member State;

(c) Article 14 of Directive 2006/43/EC of the European Parliament and of the Council in respect of the approval of statutory auditors from another Member State;

(d) Council Directive 74/556/EEC in respect of the acceptance of evidence of the knowledge and ability necessary in order to take up or pursue activities of self-employed persons and of intermediaries engaging in the trade and distribution of toxic products or activities involving the professional use of toxic products.

2.  Recognitions of professional qualifications for the purposes of point (a) of paragraph 1 of this Article shall include:

(a) recognition of professional qualifications which have benefited from Article 3(3) of that Directive;

(b) decisions granting partial access to a professional activity in accordance with Article 4f of that Directive;

(c) recognitions of professional qualifications for establishment purposes made under Article 4d of that Directive.  

Article 21

Ongoing procedures on the recognition of professional qualifications

Article 4, Article 4d in respect of recognitions of professional qualifications for establishment purposes, Article 4f and Title III of Directive 2005/36/EC, Article 10(1), (3) and (4) of Directive 98/5/EC, Article 14 of Directive 2006/43/EC and Directive 74/556/EEC shall apply in respect of the examination by a competent authority of their host State or State of work of any application for the recognition of professional qualifications introduced before the withdrawal date by United Kingdom nationals and in respect of the decision on any such application.

Articles 4a, 4b and 4e of Directive 2005/36/EC shall also apply in so far as relevant for the completion of the procedures for the recognitions of professional qualifications for establishment purposes under Article 4d of Directive 2005/36/EC.

Article 22

Administrative cooperation on recognition of professional qualifications

1. With regard to the pending applications referred to in Article 21, the Member States shall cooperate with the United Kingdom in order to facilitate the application of Article 21. Cooperation may include the exchange of information, including on disciplinary action or criminal sanctions taken or any other serious and specific circumstances which are likely to have consequences for the pursuit of the activities falling under the Directives referred to in Article 21. 

Title III

Coordination of social security systems

Article 23

Persons covered

1.  This Title shall apply to the following persons:

(a) United Kingdom nationals who are subject to the legislation of a Member State on the withdrawal date, as well as their family members and survivors;

(b) United Kingdom nationals who reside in a Member State, and are subject to the legislation of the United Kingdom on the withdrawal date, as well as their family members and survivors;

(c) persons who do not fall within points (a) to (b) but are United Kingdom nationals who pursue an activity as employed or self-employed person in one or more Member States on the withdrawal date, and who, based on Title II of Regulation (EC) No 883/2004, are subject to the legislation of the United Kingdom, as well as their family members and survivors;

(d) stateless persons and refugees, residing in a Member State, who are in one of the situations described under points (a) to (e), as well as their family members and survivors; 

(3) nationals of third countries, as well as members of their families and survivors, who are in one of the situations described under points (a) to (e), provided that they fulfil the conditions of Council Regulation (EC) No 859/2003.

2. These persons shall be covered for as long as they continue without interruption to be in one of the situations set out in paragraph 1 involving both a Member State and the United Kingdom at the same time.

Article 24

Social security coordination rules

1. The rules and objectives set out in Article 48 TFEU, Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009, shall apply to the persons covered by this Title. 

Member States shall take due account of the Decisions and Recommendations of the Administrative Commission for the Coordination of Social Security Systems attached to the European Commission, set up under Regulation (EC) No 883/2004 ("Administrative Commission") listed in [Annex II to] this Regulation.

2. By way of derogation from Article 2 of this Regulation, for the purposes of this Title, the definitions in Article 1 of Regulation (EC) No 883/2004 shall apply. 

3.  With regard to the persons referred to in Article 23(1)(g) of this Regulation, the reference to Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 in this Article shall be understood as reference to Regulation (EC) No 1408/71 and Regulation (EC) No 574/72 respectively.  

Article 25

 Special situations covered

1. The following situations, insofar as they relate to persons  not covered by Article 23, shall be covered by this Title only to the extent set out below:

(a) the following persons shall be covered by this Title for the purposes of reliance on and aggregation of periods of insurance, employment, self-employment or residence, including rights and obligations deriving from such periods in accordance with Regulation (EC) No 883/2004:

(i) Union citizens, as well as stateless persons and refugees residing in a Member State and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of the United Kingdom before the withdrawal date but are no longer subject to that legislation;

(ii) United Kingdom nationals, as well as stateless persons and refugees residing in the United Kingdom and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of a Member State before the withdrawal date but are no longer subject to that legislation; 

For the purposes of aggregation of periods, both periods completed before and after the withdrawal date shall be taken into account in accordance with Regulation (EC) No 883/2004;

(b) the rules set out in Articles 20 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person who has begun a course of planned health care treatment before the withdrawal date in a Member State, while that State was not the competent State until the end of the treatment. The corresponding reimbursement procedures shall also apply even after the treatment ends. They enjoy the right to enter and exit the State of treatment in accordance with Article 7, mutatis mutandis;

(c) the rules set out in Articles 19 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person, covered by Regulation (EC) No 883/2004, who is staying at the withdrawal date in a Member State, until the end of the stay. The corresponding reimbursement procedures shall also apply even after the treatment ends;

(d) the rules set out in Articles 67 to 69 of Regulation (EC) No 883/2004 shall continue to apply to awards of family benefit to which there is entitlement on the withdrawal date to Union citizens, stateless persons and refugees residing in a Member State as well as nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, residing in a Member State, who are subject to the legislation of a Member State and have family members residing in the United Kingdom on the withdrawal date; 

(e) in the situations set out in Article 25(1)(d)(i) or (ii), for any persons who have rights as family members pursuant to Regulation (EC) No 883/2004, such as derived rights for sickness benefits in kind, the Regulation and the corresponding provisions in Regulation (EC) No 987/2009 shall continue to apply for as long as the conditions provided therein are fulfilled.

2. If, following the grant of a pension or a benefit based on periods of insurance, employment, selfemployment or residence in accordance with point (a) of paragraph 1 of this Article, a Member State is competent for the sickness benefits of a person residing in the United Kingdom, that person, as well as his or her family members and survivors, shall be entitled to sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a person receiving a benefit other than pension). The corresponding reimbursement procedures shall apply.

This provision shall apply mutatis mutandis as regards family benefits based on Articles 67 to 69 of Regulation (EC) No 883/2004.  

Article 26

Development of law and adaptations of Union acts

1. Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are referred to in this Regulation and where those Regulations are amended or replaced after the withdrawal date, the reference to those Regulations shall be read as referring to them as amended or replaced, in accordance with the acts listed in [Annex I] to this Regulation.

2. Regulations (EC) No 883/2004 and (EC) No 987/2009 shall, for the purposes of this Regulation, be understood as comprising the adaptations listed in [Annex II] to this Regulation.

3. The Decisions and Recommendations of the Administrative Commission shall, for the purposes of this Regulation, be understood as comprising the list set out in [Annex I].

TITLE IV

OTHER PROVISIONS

Article 27

Free movement

United Kingdom nationals who have been issued documentation pursuant to Article 11 shall retain the right of free movement to other Member States in accordance with the relevant provisions of the Treaties and the legislation to give them effect.

Article 28

Publicity

The Member States shall disseminate information concerning the rights and obligations of persons covered by this Regulation, in particular by means of awareness-raising campaigns conducted, as appropriate, through national and local media and other means of communication.  

Article 29

More favourable provisions

1. This Regulation shall not affect any laws, regulations or administrative provisions applicable in a host State or a State of work which would be more favourable to the persons concerned. This paragraph shall not apply to Title III.

2.  Article 5 and Article 16(1) shall be without prejudice to the Common Travel Area arrangements between the United Kingdom and Ireland as regards more favourable treatment which may result from these arrangements for the persons concerned.  

Article 30

Life-long protection

The persons covered by this Regulation shall enjoy the rights provided for therein for their lifetime, unless they cease to meet the relevant conditions.

Article 31

Entry into force and application

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   It shall apply from the withdrawal date.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, xx date 2018.