Freedom to insult? Balancing freedom of expression with religious tolerance in ECHR case law

Professor Steve Peers, University of Essex

A recent judgment of the European Court of Human Rights has raised again the question of whether there should be limits on free speech when someone might be offended by it – in this case, concerning the Muslim faith. It’s a good opportunity to explain the context of the case and assess what – if any – limits should be acceptable on free speech in such cases.

Judgment

The saga of ES v Austria began at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party. An undercover journalist complained to the police about some of the comments made at the seminar (in particular about Mohamed as inclined to pedophilia), and the speaker was prosecuted. She was ultimately convicted and ordered to pay a small fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:

 “Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

 The conviction was upheld on appeal throughout the national courts, and the applicant then complained to the European Court of Human Rights (ECtHR) that her right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR) had been infringed. Since her free expression had obviously been penalised, the crucial issue in the case was whether the interference with that right was justified under Article 10(2) ECHR, which provides:

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The restriction in this case was “prescribed by law” (as can be seen above), and so the issue is whether the restriction was “necessary in a democratic society”. The Court began its assessment by reiterating (from its prior case law) that freedom of speech is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Article 10(2) provides “little scope…for restrictions on political speech or on debate on questions of public interest”. In particular, believers in a religion, “irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

Having said that, though, the “duties and responsibilities” referred to in Article 10 include (referring again to case law):

“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane….Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures….In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”

In this context, prior case law had concluded that ECHR Contracting States “enjoy a certain margin of appreciation” in this field – meaning that the ECtHR does not intensively review how they strike the balance between freedom of speech and the protection of religious sensibilities, in particular as there is no “uniform European conception” of how to strike this balance. Moreover, ECHR States also “have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”. (A “positive obligation” is a legal requirement for the State to take action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people for their comments). A State “may therefore legitimately consider it necessary” to limit the free speech of some which is “judged incompatible with respect for the freedom of thought, conscience and religion of others”, although ultimately the ECtHR exercises some review over how a State strikes that balance in each particular case.

Prior case law has turned on whether a value judgment has sufficient factual proof to support it, and the ECtHR’s role is not “to take the place of the national authorities”, but to review if their decisions are based “on an acceptable assessment of the relevant facts…and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued””, in light of the “content of the statements” and “the context in which they were made”. Also, “the nature and severity of the penalty imposed are also factors to be taken into account”. If the national authorities have already applied such a balancing exercise in line with these criteria, “the Court would require strong reasons to substitute its view for that of the domestic courts”.

Applying those principles to this case, the subject matter was “particularly sensitive”, and so “the domestic authorities had a wide margin of appreciation” because “they were in a better position to evaluate which statements were likely to disturb the religious peace in their country”. The seminars in question were public, and Austrian law did not simply “incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.” The national courts “extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation”, and the ECtHR agreed with the lower court “that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.

The Court went on to agree with the national courts that in this case, value judgments did not have “sufficient factual basis”, and rejected the argument that “a few individual statements had to be tolerated during a lively discussion”. In the judges’ view, “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable.” Finally, the Court took into account the very modest sanctions applied to the speaker.

Comments

Context

As noted at the outset, it’s necessary to explain the context of this case – given that it seems to be widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU law, but the court of 47 European countries applying the ECHR, an international treaty separate from EU law. EU law touches on religious issues when it comes to religious discrimination in employment (see the case law discussed here), animal welfare issues, or persecution of refugees on grounds of religion – but has nothing to do with the issue of prosecution for offending religious sensibilities.

Secondly, the ECtHR is in no sense applying “Sharia law” here. The complaint was not made by a Muslim organisation, but by an undercover journalist. The Austrian law was not enacted solely to protect the Islamic faith, but other faiths too; and it was not motivated by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”, considering that it requires an additional element. Nothing in the judges’ reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is quoted as using that term).  Nor does the Court require other countries to follow Austria’s lead: although it refers to positive obligations to protect freedom of religion, it does not spell out what they are, for the obvious reason that the applicant was not arguing a failure by Austria of any positive obligations in this case.

Thirdly, as my summary of the judgment sets out, there’s nothing unusual or exceptional about the underlying legal reasoning in the Court’s approach here. It’s applying its long-standing doctrine related to the balance between freedom of expression and freedom of religion. This is indeed an area where the “margin of appreciation”, giving considerable deference to States’ choices, has long been applied widely, although States do not always win. (Have a look at the cases linked to in the judgment, or the summary in this fact sheet, for more details: note that there are judgments arguably deferential to Christianity, not just Islam).

Finally, on the same point, it should be noted that the Court, sometimes criticised for being activist, is in this case conversely criticised for being deferential to States. The judges leave the remedy for those who criticise the law in Austria (or similar laws elsewhere) as the political process in Austria, rather than the remote court in Strasbourg. But those who usually criticise foreign judges’ interference now seem disappointed that those foreign judges didn’t interfere to effectively endorse their own criticism of Islam.

Assessment of the judgment

Although some of the Court’s critics seem to have misunderstood the context of the judgment, I would agree that there is a lot in the judgment to criticise. What I would question here is both the Court’s application of its “margin of appreciation” doctrine to the facts of this case, and its failure to reconsider that doctrine in general. On the first point, while I agree that the small fine is relevant, it’s odd that the Court however fails to consider the absence of any complaint by a Muslim organisation as such, given that its reasoning turns on the importance of the objective of ensuring religious peace. Its distinction between marrying one child and a preference for children in general comes across as sophistry. And its concern that anyone could have attended the political seminar overlooks the broader context of an Internet full of critics of Islam: if the problem is a forest, does it make sense to prosecute an individual tree?

On the Court’s failure to reconsider its doctrine in general, there’s a procedural point here: the judgment was delivered by a small Chamber of few judges, not a Grand Chamber with many more; and only the Grand Chamber has the authority to reconsider long-standing jurisprudence. (The applicant can request the Grand Chamber to review this Chamber judgment). But I would hope that the Grand Chamber has the opportunity to do so, and uses it. Here’s why.

As a confirmed agnostic who attends Catholic mass, I can see the conflict of rights here in personal terms. Faith is at the core of many people’s personal identity. It inspires the spiritual, explains the inexplicable, and consoles the inconsolable; it provides a community to celebrate the breaking of fasts, the liberation from slavery or the miracle of resurrection. It celebrates birth, codifies life, and commemorates death – yet offers hope of immortality.

Yet I can see why some wish to condemn one faith, or all faiths. There’s no shortage of abuse, discrimination, persecution, hatred or violence based on religion. And some generally believe that all religions are nonsense: that in a scientific age, with lots of suffering before death that we should be concerned about, it’s long past time to go cold turkey on the opiate of the masses.

My answer to the potential conflict of rights is to respect others’ right to believe what they want to believe (or not believe). But others have a different view. And freedom of speech is not just the freedom to calm people down: it’s also the freedom to wind people up, turn people on, or piss people off.

The flaw with the Court’s traditional case law is that it places too much priority on the right not to be offended, and not enough on the right to offend. Indeed, the Court quotes – but does not explicitly follow – a report from the Venice Commission, which recommends that States should abolish the offence of blasphemy or religious insult (the latter, with added elements, seems to be the basis of its recent judgment) and rely solely instead on incitement to hatred. I would go further still, and criminalise only incitement to hatred which advocates violence or other criminality.

So “Muslims are vile; let’s attack them” should be criminal; as should the attack itself, or the criminal damage entailed by a swastika drawn on a synagogue. I take the point that swastikas don’t draw themselves, and that if someone merely says “Muslims are vile”, his listeners may well add “let’s attack them” in their own minds and act on it. But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised.

Moreover, incriminating many critics of Islam (or others considered intolerant) who don’t directly advocate violence doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free speech advocates, or even martyrs.  Prosecuting them for non-violent statements simply attracts more attention to their views. (This is also an answer to the valid “it’s easy to advocate freedom of speech when you’re not the target” arguments).

Two important qualifications, though. First of all, the freedom of expression is not a right to a platform: there’s no legal obligation for the mainstream media or social networks, for instance, to give any particular view uncritical attention, or any attention at all. Secondly, freedom of expression works both ways (that’s rather the point): it’s equally applicable to those who want to mock or react to Islamophobes or their ilk, and criticising someone’s views is not the same as “silencing” them. There’s nothing quite as pathetic as (for instance) the sight of the supporters of Trump’s crassness and intolerance crying crocodile tears in reaction to a comedian making a joke about his press secretary’s eye-shadow.

Ultimately, though, the problem with banning non-violent criticism of religion isn’t just about tactics; it’s about the paradox of intolerance. It’s logically impossible to preach tolerance while saying that dissenting views should be banned – even if those views are not very tolerant themselves. Fundamentally, a good idea – whether religious or secular – should speak for itself, not shut its critics up.  

Barnard & Peers: chapter 9

Photo: Islamic Centre, Vienna; photo credit: Wien.info

Interim Revolutions: the CJEU gives its first interim measures ruling on the rule of law in Poland

Daniel Sarmiento,  Professor of EU Law at the University Complutense of Madrid*

The decision of 19 October of the Vice-President of the Court of Justice, ordering the Republic of Poland to suspend the effects of the Judiciary Reform Act and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age, is revolutionary to say the least. The Court has entered a terra incognita, a place where no previous European court had ever entered into, forcing a sovereign Member State to choose between its membership to the club of European integration, or to walk away and follow the path of authoritarian illiberalism. To do this in an Order of interim measures, without hearing the defendant Member State, and two days before a crucial regional and local election in Poland, is quite a gamble on the part of the Luxembourg court.

However, the stakes are so high that the Court was left with hardly any other choices. Unfortunately the Polish government has triggered a process and a style of governance that has eventually cornered it into an untenable position, a no-prisoners approach in which EU Institutions have now no other choice but to stand firm and keep calm. In contrast with other illiberal governments within the Union, notably Hungary, the Polish crisis is acutely visceral and radical.

Looking at the Order from a strictly legal angle, the decision is quite an event and a ground-breaking precedent. Interim measures are exceptional means to ensure the effectiveness of a procedure, but they are mostly used to suspend the effects of EU acts. Challenges before the Court will usually involve private applicants questioning the legality of, for example, Commission decisions. The scenario in which a Member State acts as a defendant to which an interim measure can be imposed, is basically limited to infringement procedures brought by the Commission or by another Member State on the grounds of Article 258 TFEU. These kinds of interim measures are hardly ever requested, for the Commission is well aware of the reluctance of the Court to order Member States to act or refrain from acting in provisional terms. Such interim relief is granted on the grounds of Article 279 TFEU, a provision that gives the Court ample discretion to be creative about the kind of interim measure that the case deserves, but in practice they are scarcely requested and, as a result, hardly ever granted.

In Friday’s Order, the Vice-President has not granted ordinary interim relief on the grounds of Article 279 TFEU, but a particularly urgent kind of relief. The Order relies on Article 160(7) of the Rules of Procedure, which allows the Court to rule prior to hearing the defendant Member State. These interim measures are used when the urgency is such, that the order must be granted immediately and therefore with no time to hear the defendant party. Therefore, there will be another decision on the interim measures soon, once Poland has been heard in writing and, most probably, in the course of an oral hearing.

Furthermore, the Order is retroactive. The Judiciary Reform Act introduced a new retirement age for judges set at 65 years of age, and since its entry into force it has already served as a legal cover for the retirement of several sitting judges. Despite the fact that the Act had been suspended by the Supreme Court as a result of a preliminary reference sent to Luxembourg this summer, some of its provisions have already produced effects. Therefore, the Order imposes on Poland a retroactive suspension of effects that deploys the rulings’ effects from the moment of entry into force of the Act.

And finally, the Order steps into a terrain which has traditionally been handled with the utmost care by the Court, but which is now an arena in which the Court seems comfortable to rule in far-reaching ways. When a similar action was brought by the Commission against Hungary’s reform of the judiciary in 2012, the grounds of review were linked to Directive 2000/78 and discrimination on the grounds of age. A rather low-profile approach for a case that involved very special “workers”, as is the case of national judges. However, this time around the Commission has brought the case against Poland on the grounds of Article 19 TEU, which states that the EU’s judiciary is composed of both EU and national courts, acting in conformity with fundamental rights and in full independence. This independence is now being questioned by the Polish reforms. There is hardly any other provision of EU law at stake, but this has been deemed to be sufficient by the Commission to bring such a case, and the Court appears willing to play ball. There are good arguments about competence that could be used against the Commission, but it seems that one thing is to reform a national judiciary, and quite another to launch a full-blown attack on the independence of all the high courts of the land. The Commission appears to be committed to fight the latter, but Poland will certainly argue that the competence of the Union is shaky to say the least.

Nevertheless, last week’s Order has been slowly and carefully brewed in the Luxembourg futuristic anneau. In the landmark case of the Portuguese judges, rendered in early 2018, the Court set the tone for this new ground of review, and stated that Article 19 TEU, including its reference to independence, is a relevant parameter of review of national measures. Shortly before, in the case of the Polish forest of Białowieża, the Court ruled that in case of breach of an interim measure addressed to a Member State, penalty payments and pecuniary sanctions can be imposed by the Court at the request of the Commission, on a careful but daring interpretation by analogy with Article 260 TFEU (which provides for the Court to impose monetary penalties in certain circumstances). Before the 2018 summer holiday, in the LM case, the Court sent yet another powerful message by stating that judicial cooperation with Poland in the field of criminal law could come to an end In Poland if the European Council finally triggers Article 7 TEU proceedings against the Member State. Last week’s Order seems to be another piece in this terribly complex jigsaw puzzle that the Polish challenge is proving to be.

But the stakes are high and the Polish government knows it. It is no coincidence that the Polish Prosecutor’s Office has recently brought an action before the Constitutional Court arguing that the suspension of effects enacted by the Supreme Court is unconstitutional. If the Constitutional Court sides with the Prosecutor (and the new composition of the Court inclines me to think that it will), the argument could be well extended to Friday’s Order. With that ruling from the Constitutional Court, the Polish argument will probably argue that proceedings in Luxembourg are ultra vires and not applicable in Poland.

At that stage, the showdown will be inevitable and the Commission will have no other choice but to request the enforcement of the Order through Article 260 TFEU. Penalty payments will be imposed and Poland will refuse to pay following the ultra vires rationale. The Financial Regulation will have to be interpreted creatively so that the amounts receivable are offset by forthcoming payments to Poland. After all, Poland is a net beneficiary of the EU budget and it will not be difficult to ensure that the penalty payments effectively end in the coffers of the EU budget and not in the pockets of the Polish government. At that point, the Polish government will have to explain to its citizens why the generous contributions coming from Europe start to decline. The blame game might work for a time, but at some point the Polish people will realize that their government is not only risking their benefits, but even their European Union membership.

Whatever the result might be, the Court seems committed to playing the role that it has been anticipating for several months now. Nothing appears to be stopping the Court from playing hardball in this new chapter of European integration, in which “integration through law” has now turned, to the surprise and concern of us all, into “integration through the rule of law”. A nice but worrying twist that puts Europe on the eve of a new chapter, in its always bumpy road towards peace and prosperity in the continent.

*Reblogged with permission from the Despite our Differences blog

Barnard & Peers: chapter 10

Photo credit: New York Times

The “Mellifera” case and access to environmental justice under the Aarhus Regulation: new findings, old story

Mario Pagano, PhD candidate in EU environmental law, European University Institute

Background

The Aarhus Convention is probably the most important piece of international law relating to environmental democracy rights. Indeed, this UN Convention - adopted in 1998 - enshrines three individual procedural rights having a direct link to environmental protection. These rights (also known as the three Aarhus “pillars”) are the right to environmental information, the right to participate in the environmental decision-making, and the right to access to justice in environmental matters.

The Aarhus Convention Compliance Committee (ACCC) is the non-confrontational, non-judicial and consultative body established in Geneva since 2002, called upon to check the conformity of the legislation of the Parties to the Convention with the Convention itself. Surprisingly, even associations and non-governmental organisations (NGOs) active in the environmental domain may submit communications to the committee with regard to the compliance of one of the Parties with the Convention. The latter counts 47 Parties, including the EU, which adhered to the Aarhus Convention in 2005.

In 2008, the NGO Clientearth submitted a communication to the Committee concerning compliance of the EU with the Aarhus Convention. In particular, the NGO complained about the restrictive interpretation given by the Court of Justice of the EU (CJEU) of Article 263 paragraph 4 TFEU, the so-called Plaumann test, which has never allowed any private applicant to actually challenge in a direct action any EU environmental measure.

In addition, Clientearth raised the question of whether certain provisions of Regulation 1367/2006 (hereinafter the “Aarhus Regulation”), which binds the EU institutions to respecting the norms enshrined by the Aarhus Convention, were in compliance with the Convention’s provisions on access to justice, namely Article 9 paragraphs 3 and 4, which concern access to justice and effective remedies.

After nine years and a first part of its findings released in 2011, the ACCC released the second part of the findings in 2017. In this document, the ACCC endorsed the NGO’s arguments and found that the EU was in breach of the Aarhus Convention provisions on access to justice. Moreover, the Committee recommended the EU to amend the Aarhus Regulation and invited in particular the CJEU to “update” its jurisprudence on Article 263 paragraph 4 TFEU.

Article 10 paragraph 1 of the Aarhus Regulation provides for a procedure of internal review of EU administrative acts. In other words, NGOs may ask an EU institution to review its own act adopted under EU environmental law, in a procedure which is very similar to a ‘recours administratif’ under French law.

The necessity to amend the Aarhus Regulation, according to the Committee, is mainly due to the restrictive definition of a challengeable “administrative act” provided by Article 2 paragraph 1 g) of the Aarhus Regulation. Such a provision defines an administrative act as “any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects”. Most of the problems with regard to this provision are raised by the word “individual”, which makes extremely difficult for civil society organisations to challenge EU measures in the field of environmental protection. This because such measures usually have a very broad scope, given that they aim at protecting common goods such as the natural heritage or public health.

The judgment

Background

In August 2016, the German association Mellifera eV (hereinafter “Mellifera”) – which aims at preserving bees’ health – asked the European Commission to review, under Article 10 paragraph 1 of the Aarhus Regulation, its implementing regulation 2016/1056 extending the approval period of the active substance glyphosate (a controversial weed-killer). The European executive rejected Mellifera’s request on the ground that this did not constitute a challengeable EU administrative act as outlined in Article 2 paragraph 1 g) of the Aarhus Regulation. As a consequence, in January 2017 the association decided to challenge the Commission’s decision rejecting its request before the General Court (GC) of the EU (case T-17/12).

According to Mellifera, the contested regulation had to be qualified as an administrative act of individual scope for the main reason that the extension accorded by the Commission for glyphosate was framed within a specific administrative procedure of approval. On this point, the association held that Commission implementing regulation 2016/1056 was adopted only once an individual request of renewal was submitted by the applicant, as provided by Article 15 of Regulation 1107/2009 concerning the placing of plant protection products on the market. This implied that the regulation was able to affect the legal position of the applicant, authorizing the latter to continue to put the product on the market.

The association recognized that a measure authorising the place on the market of a certain product also has positive effects on other economic operators producing or trading the same product. However, such effects are only ‘indirect’, since all direct effects produced are limited to the legal sphere of the single applicant. Therefore, the authorization could not be considered as an act of general scope, since it did not lay down any abstract requirement that the substance had to meet, but it rather authorized the single applicant to place that specific substance on the market.

Finally, and most importantly, Mellifera invited the Court to take into account the aforementioned findings of the ACCC and modify its jurisprudence on the “act of individual scope” requirement. In addition, the association invited the EU judges to provide a consistent interpretation of Article 10 paragraph 1 of the Aarhus Regulation with the Aarhus Convention, in order to bring the EU closer to a full compliance with international environmental law.

EU General Court ruling

The GC disagreed with the arguments put forward by Mellifera and, in its ruling issued on the 27^th of September 2018, confirmed the CJEU previous jurisprudence on the Aarhus Regulation, namely the Stichting natuur case-law.

Firstly, the EU judges agreed with the Commission and found that the implementing regulation had a general scope, since it did not limit its effects to the legal sphere of the applicant. On the contrary, as the applicant acknowledged itself, the regulation also affected the legal sphere of other economic operators who find themselves in need of that authorization as they produce or trade, in the internal market, phytosanitary products containing that specific substance. As a consequence, in the Court’s reasoning, the individual scope of the implementing regulation had to be set aside.

Secondly, the GC dealt with the invitation put forward by Mellifera to align its jurisprudence with the findings of the ACCC and the provisions of the Aarhus Convention on access to justice. The association recalled that the Convention is binding on the EU and that Article 9 paragraph 3 of the Convention guarantees the broadest access to justice possible, not limiting the possibility to challenge measures having a negative impact on the environment to acts of “individual scope“. This is a stricter definition introduced by the EU legislator that is not required by the Aarhus Convention.

In addition, the association highlighted that, in spite of the lack of direct effect of Article 9 paragraph 3 of the Aarhus Convention affirmed in Stichting natuur and Slovak bear, the Court has a duty of consistent interpretation of EU secondary law with international agreements to which the EU is party. This meant that, according to Mellifera, the Court had to interpret Article 10 paragraph 1 of the Aarhus Regulation in compliance with Article 9 paragraph 3 of the Aarhus Convention.

Nevertheless, the GC rejected all these arguments. First, it denied once again that Article 9 paragraph 3 may have direct effect in the EU legal order. Second, regarding the invitation to follow the ACCC findings, the EU judges answered that even assuming that such findings had binding force, these are nothing more than a simple “project”, which has been released on the 17^th of March 2017, therefore once the contested regulation had already been adopted by the Commission.

Regarding the duty of consistent interpretation with international law, the Court held that this is possible only where the wording of the concerned legislation allows for such an interpretation and this does not lead to an interpretation contra legem.

In this regard, the EU judges noticed that, since the wording of the relevant legislation (namely the Aarhus Regulation) is very clear in limiting the types of challengeable measures to administrative acts having an “individual scope”, a consistent interpretation of such a regulation must be excluded, especially in the case at stake, since the Court had already qualified the contested implementing regulation 2016/1056 as a measure of “general scope”.

For these reasons, the Court rejected all the pleas put forward by the association.

Comment

The “Mellifera” case is interesting for a number of reasons, in particular with regard to the role played by the association which brought the case before the Court.

In this regard, “Mellifera” can be seen as a very good example of how civil society organisations can make use of international law in order to bring changes in the EU legal order. Although it ultimately failed, the association tried to “enforce” the Aarhus Convention and, at the same time, amend the relevant EU legislation hindering access to justice in environmental matters.

Furthermore, it is also worth consideration the role the organisation played in trying to favour a “judicial” dialogue (even if the ACCC acts in a non-judicial capacity) between European courts and international compliance bodies, by inviting the GC to take into account the recent findings of the Aarhus Committee. However, that invitation has been completely disregarded by both the European Commission and the CJEU’s General Court.

The two EU institutions agreed on defining the findings and recommendations of the Aarhus Committee as a simple “project” (a term whose meaning is not really clear in such a context) without any binding force. Plus, the Court used the chronological argument - according to which the findings were released only after the Commission implementing regulation - as a justification for setting aside the fact that EU is (still) not in compliance with the Aarhus Convention. Given this argument, it will be interesting to see how the Court will answer to applications challenging EU measures adopted after the publication of the ACCC findings.

In conclusion, it does not appear that the “Aarhus fight” between EU institutions and environmental associations and NGOs will finish soon. A fortiori, the findings of the Aarhus Committee, along with the recent positions on the matter adopted by all the other EU institutions (in particular the Council and the European Parliament) seem to have strengthened the civil society’s beliefs that EU law can be amended, and a new similar application by Mellifera has already been submitted before the GC in August 2018.

Barnard & Peers: chapter 10, chapter 22

Photo credit: Telegraph

Human rights v the European Arrest Warrant? The legality of surrender detention after 90 days

Joske Graat, PhD student, Utrecht University

The Amsterdam District Court, which has the exclusive jurisdiction in the Netherlands to decide on incoming European Arrest Warrants (EAW), currently finds itself stuck between national rules and EU law obligations on detention and provisional release.  According to the Dutch Surrender Act (SA), the requested person needs to be (provisionally) released 90 days after the receipt of the EAW if the court has not delivered a decision by then. In 2015, the Court of Justice of the European Union (CJEU) decided in Lanigan (discussed here) that the Framework Decision on the European Arrest Warrant (FDEAW) does not require the release of the requested person after 90 days as national courts need to be able to ensure that the substantive conditions for surrender are at all times guaranteed. Consequently, extending the detention beyond this term is allowed in compliance with national rules. This is, however, exactly where the trouble starts in the Netherlands, since article 22(4) SA does not allow for such an extension. As a result, the strict obligation under national law to release the requested person might clash with the EU obligation to ensure the effectiveness of the surrender procedure.

We will see that the solution of the Amsterdam District Court to this problem, which is to interpret Dutch legislation in the light of the FDEAW, is itself problematic. In my opinion, the interpretation of the relevant provisions interferes with the legal certainty of the requested person and constitutes a contra legem interpretation. The legal certainty concerns have in fact resulted in a preliminary question to the CJEU, but it is questionable whether any answer would solve the problem at hand or would further complicate matters. (The CJEU has fast-tracked the case, and an Advocate-General’s opinion is due on November 6th) Hence, I would argue that it is time for the Dutch legislator to step in.

The issue of clashing national and European obligations regarding detention has become increasingly urgent as it becomes – as a result of other EU law obligations - ever more difficult to reach a decision on an EAW within 90 days. These obligations include the duty to refer preliminary questions and the obligation established in Aranyosi & Căldăraru (discussed here) to ask the issuing state for information contradicting a possible violation of article 4 Charter of Fundamental Rights of the European Union (CFR). Fulfilling these obligations often prolongs surrender proceedings and could result in the release of requested persons, even if the risk of absconding is real.  In the latter case, the order to release would violate the general obligation in Article 17 FDEAW to ensure that the substantive conditions for surrender remain guaranteed.

As I stated before, the Amsterdam District Court tried to find a way out in seeking to interpret Dutch legislation in conformity with the FDEAW. It ruled that Article 22 SA not only contains the power to extend the decision term after 90-days, but also includes the competence to suspend the 90-day term before it has lapsed. In case of the latter, the 90-day term is barred and thus the requested person might de facto be detained for more than 90 days. This possible effect of the new interpretation of Article 22 SA has been criticized in the light of the right to liberty in article 5 European Convention on Human Rights (ECHR) and 6 CFR.

A complaint was filed before the European Court of Human Rights (ECtHR), questioning whether the interpretation of Article 22 SA violates the requirement of a clear legal basis for detention in article 5(1)(f) ECHR. Remarkably, the Dutch government contended that this requirement has indeed been violated and has offered compensation for the unlawful detention. Unfortunately, though, the ECtHR therefore, struck the case, which was not decided on the merits. Meanwhile the Amsterdam District Court itself has recently requested a preliminary ruling on whether legal certainty as protected by Article 6 CFR is violated by the current interpretation of Article 22 SA.

In my opinion, this interpretation of Article 22 SA is not only an unjustified interference with the principle of legal certainty; it is also a contra legem interpretation. To start with the former. It is true that the current case law of the CJEU interprets legal certainty as a restriction to the duty of conform interpretation (sometimes called ‘indirect effect’) in a narrow manner. Legal certainty bars conform interpretation when this would result in determining or aggravating criminal liability on the basis of the FDEAW alone. In this sense, legal certainty is obviously no barrier to the current interpretation of Article 22 SA.

However, the general scope of the principle of legal certainty is not restricted to establishing or aggravating criminal liability. The principle is also part of Article 5 ECHR and 6 CFR which demand that the procedure for detention pending extradition is sufficiently accessible, precise and foreseeable to prevent arbitrary interferences with the right to liberty. Even though the broad concept of ‘the law’ in Article 5 ECHR, which includes both formal statutes and case law, allows the interpretation of a written rule in jurisprudence, the ECtHR has decided in past cases that a violation of Article 5 ECHR may occur when the national authorities do not interpret or apply the rules on extradition detention in a uniform manner. These cases concerned diverging opinions of national judicial authorities regarding the application of time limits and the use of a particular national provision as a legal basis for detention. The situation at hand is slightly different, since it concerns a difference in opinion between the court and the Dutch legislator, who stated explicitly that the requested person should be released after 90 days. However, I would argue that a similar risk of arbitrariness and threat to legal certainty exists in this situation. Can we really speak of a sufficiently foreseeable and accessible procedure for surrender detention when the judiciary and the legislator disagree on the interpretation of Article 22 SA?

In case the CJEU were to find the interpretation of Article 22 SA compatible with legal certainty, it should still be considered contra legem. This restriction to the duty of conform interpretation is often connected to the legal certainty principle but constitutes essentially a different test. In my opinion, the current interpretation of Article 22 SA contradicts the wording of the provision. The text as well as the intention of the legislator are crystal clear. Release after 90 days means release after 90 days. In addition, suspending a decision means in common parlance ‘halting or stopping’ an ongoing term which has not yet lapsed, whereas extending means ‘adding’ time to a term which has already lapsed. Hence the wording and meaning of Article 22 SA simply does not allow the interpretation as it follows from the case law of the Amsterdam District Court.

Lastly, we should also view the consequences of a rejection of the current interpretation of Article 22 SA. Is the Amsterdam District Court provided with the means to solve the remaining clash between its duties when an interpretation of the Dutch rule in conformity with the FDEAW is impossible? The answer is – at least for now - that it is not. This could change if the CJEU in the future decides that the primacy rule also applies to former third-pillar framework decisions. This question has equally been put before the CJEU by the Amsterdam District Court, but has remained yet unanswered (the case is still pending).

Application of the primacy rule would bring along its own problems however. It would resolve the clash between EU obligations and national law but might at the same time harm the legal certainty of the requested person. After all, it will depend on the concrete circumstances of each case whether the decision-term will be suspended or not and, therefore, whether Article 22 SA will be applied or not. If this effect would be corrected by a legal certainty exception to the primacy rule, legal certainty may be ensured, but the clash between EU law and national law would continue to exist.

The devilish dilemma for the Amsterdam District Court may thus not easily be solved by the CJEU. It is indeed difficult to see how any decision of the CJEU would not further complicate matters rather than solve them. Most likely the CJEU will not be able to provide the Amsterdam District Court with a way out of its impasse while at the same time protecting legal certainty. This brings another state authority in the picture: the Dutch legislator. This authority could in fact quite easily solve the problem. A simple adaption of Article 22(4) SA changing it into a discretionary competence instead of an obligation would suffice. In other words, it is time for the national legislator to come to the rescue of the Amsterdam District Court.

This blog is based on a publication in Strafblad in May 2018.

J.J.M. Graat, ‘Een dilemma voor de Overleveringskamer’, Strafblad 2018(2) 20.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: The Panopticon Chronicles

The compatibility of Ireland’s Public Health (Alcohol) Bill with EU law

Dr. Ollie Bartlett, Maynooth University

This month the Irish Public Health (Alcohol) Bill completed its passage through the houses of the Oireachtas, after two years and nine months of debate. The Bill introduces five main interventions: minimum pricing of alcoholic beverages; stricter labelling of alcoholic beverages; restrictions on alcohol advertising; the structural separation of alcoholic beverages from other products in retail outlets; and restrictions on the sale and supply of alcoholic beverages. Its purpose is to combat alcohol related harm in Ireland, which has reached worryingly high levels.

Health Minister Simon Harris has been obliged to defend various aspects of the Bill in the Irish press, and has described the eventual passage of the legislation as ‘groundbreaking’. This short contribution will focus on assertions that certain parts of the legislation are not compatible with European Union law. Such assertions (usually made by those with vested interests in the alcohol trade) attempt to deploy a vision of the EU internal market as a guarantor of commercial freedoms, in order to intimidate national governments into watering down public health protections. This contribution will address the inaccuracy of these assertions in relation to the Irish Public Health (Alcohol) Bill. In doing so it will identify how governments might also misinterpret European public health law and policy, and how this can lead to regulatory failure.

Opponents could argue, and have argued, that any substantive aspect of the Bill will be liable to unduly restrict trade in alcoholic beverages, and should therefore be seen as an unjustified breach of Article 34 TFEU, which prohibits measures having equivalent effect to a quantitative restriction upon trade in goods. However, Article 36 TFEU (which provides for exceptions to Article 34), together with consistent CJEU case law (for example, Aragonesa,  Bacardi France, Ahokainen and Leppik, Rosengren and Scotch Whisky Association) indicate that, provided an alcohol control measure is proportionate, it can be adopted despite the fact that it places a restriction on trade.

All five interventions in the Bill can be justified as proportionate. Minimum pricing rules can be compatible with EU law as the Scotch Whisky judgement suggested in the context of Scottish minimum unit pricing (MUP). Context is key for MUP, and Irish MUP will not automatically be legal as a result of this decision, but under the terms of the decision, and given the extensive and clear impact assessment conducted by the Irish government, as well as the already very high tax rates on alcohol in Ireland, it should not be difficult to demonstrate that MUP is an appropriate and necessary measure in this jurisdiction too.

There was a last minute and intense debate on the inclusion of cancer warnings on alcoholic beverage labels. This proposal has perhaps been the most harshly criticised, as trade restrictive, stigmatising for Irish products and detrimental to the operation of the internal market. Mandatory health warnings on alcoholic beverages have not been directly addressed by the CJEU. Having said this, labelling and information provision have regularly been viewed by the CJEU as a proportionate form of public health intervention (for example, Van der Veldt, Commission v Germany, Neptune Distribution), and indeed the CJEU has stated that ‘labelling is one of the means that least restricts the free movement of products within the [EU]’. Furthermore, it can be argued that given the remarks made by the CJEU on the carcinogenic nature of tobacco in the Philip Morris case, and the strong evidence on the carcinogenic nature of alcohol (the third leading risk factor for disease and death in Europe behind smoking and high blood pressure), it is not unreasonable that the decision to warn of the risk of alcohol related cancer on warning labels, using a method of intervention that does not impair the substance of intellectual property or business rights, would be seen as proportionate. Cancer warning labels might stretch the limits of what is necessary to achieve the objectives of public health protection, but they arguably do not - given the existence of evidence on positive effects and Member States’ commitment at WHO level to consider stronger alcohol labelling requirements - go beyond these limits.

Arguments that such labelling requirements would put Ireland at an economic disadvantage are less forceful when one considers that nine other countries around the world have introduced stricter alcohol labelling proposals. Arguments that Irish products will be stigmatised are misguided given that the rule applies to the sale of products in Ireland, not Irish exports. Lastly, arguments that stricter labelling requirements will have severe operational consequences for industries are something of a hyperbolic smokescreen, considering that there are currently no common rules on alcohol labelling due to the exemption of alcohol from food labelling regulations, the industry themselves have specifically rejected the opportunity to create a harmonised alcohol labelling scheme within the EU, and there is already diversity in EU countries’ labelling requirements, including

mandatory health warnings in France.

Targeted advertising restrictions have also been upheld as proportionate by the CJEU. The restrictions proposed by the Bill do not amount to a total prohibition on the advertising of alcohol, and indeed that is not their intention. Consistent CJEU case law has demonstrated that if advertising interventions are limited and targeted in scope, then they will be proportionate. Retail restrictions that serve public health purposes will likely fall within the exception to Article 34 TFEU that was created by the Keck decision – any non-discriminatory ‘selling arrangement’ will fall outside the scope of Article 34 TFEU altogether. Indeed, recent tobacco case law indicates that the CJEU will classify public health interventions concerning the retail of unhealthy products as selling arrangements, and do not appear especially motivated to interfere in the Member States’ legislative choices in this regard. The same argument applies to the restrictions on sale and supply of alcohol, which primarily concern price promotions, for example buy one get one free offers. Such restrictions would likely fall within the scope of a selling arrangement, and would therefore also fall outside the scope of Article 34.

Thus, is relatively clear that four of the five interventions included in the Bill are compatible with EU internal market law. Furthermore, a coherent argument can be made that the Bill’s labelling provisions will also be compatible with internal market law. EU law supports the Irish government’s prerogative to adopt such measures, and indeed in the comments issued by the Commission on the Bill, concerns were raised regarding the labelling provisions, but they were not criticised as opponents of the Bill have asserted. Rather, the Commission used the comments to reassert Ireland’s right to adopt proportionate public health measures.

Assertions regarding the incompatibility of the Bill with EU law fail to take account of the fact that the internal market is founded and has been developed upon the understanding that the responsibility of governments to protect their populations from various threats will often conflict with the commitment to protect free trade. The European Union Treaties explicitly provide that Member States can limit economic freedoms in a proportionate manner where a pressing social concern warrants intervention, and the CJEU has reinforced this time and again in the alcohol context. Moreover, both the right to health and the right to conduct a business are equally protected as a matter of EU fundamental rights law, and the CJEU has held that the right to health will outweigh the commercial rights of certain industries that contribute to public health epidemics.

Those that criticise the Public Health (Alcohol) Bill wrongly assume that the internal market requires Member States to prioritise the rights and interests of business, and to deal with social issues in a way that best suits the business community. This is not the case – the internal market guarantees free movement, but does not guarantee businesses a trump card to play when they feel their interests are being infringed. Far from preventing the Member States from protecting their populations, EU law protects the Member States’ right and responsibility to do so in a proportionate manner - even if this would lead to a certain amount of disruption to the status quo of transnational trade.  

Even Member States sometimes misinterpret the cues given by EU public health law and policy, and this can lead to instances of regulatory failure – where mutual inaction by two regulatory actors results in an issue not being addressed. For example, one of the most salient debates on the Public Health (Alcohol) Bill concerns the minimum unit pricing provisions, and their implementation. Simon Harris has until very recently repeatedly insisted that the MUP provisions enacted in the Bill would not be implemented until similar provisions were brought into effect in Northern Ireland, based upon the belief that Irish public health policy should not produce negative effects for the transnational trade in alcoholic beverages in border counties. The special nature of the Irish border and the desire of the Irish government to make public health policy on an all-island basis may make political sense, but as a matter of law the CJEU has repeatedly held that ‘the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate’.

EU law does not require Ireland to ensure that its policy choices are consistent with the policy choices in other Member States, and does not require that, once a barrier to trade has been justified, it is not implemented on account of possible trade distorting effects. The Irish government should bear in mind that internal market law permits each Member State to protect its own population in whatever way it sees fit, irrespective of choices made by other Member States, as long the barriers to trade it erects are proportionate. Simon Harris’ recent softening of his previous stance, through statements that Ireland cannot wait ‘forever’ to implement MUP, is therefore to be welcomed.

However, some elements of the Bill have not escaped the trap of regulatory failure. While the provisions on alcohol advertising are already commendably strong, they could have been even stronger. Amendments were proposed in the final rounds of Dáil debate that would have increased the protection the legislation offered to children against online alcohol advertising. This would have given effect to a considerable body of evidence that suggests that children are vulnerable to digital and other non-traditional forms of alcohol advertising, which are hardly regulated at all by any Member State. However, Simon Harris rejected these amendments. Despite fully agreeing with their sentiments, the health minister rejected them on the basis that tackling online advertising is a task best suited for EU level action, and that Ireland should therefore not act until the EU has acted. Unfortunately this logic does not take account of the fact that the EU have already recently refused to increase the stringency of online alcohol advertising regulation. The Audiovisual Media Services Directive reforms leave EU provisions governing cross-border alcohol advertising unchanged, and even relax some of the rules on the provision of advertising services, to the detriment of children’s health protection. The Commission has repeatedly insisted that it will not propose harmonising legislation to regulate cross-border alcohol trade.

In order for this to ever happen, Member States must commit to regulating the alcohol industry in their own territories. The conferral of competence upon the EU to regulate the internal market depends on the existence of barriers to trade, which can only exist if Member States have enacted sufficiently diverse regulations. Currently, regulation of online alcohol advertising is consistent across Member States in its virtual non-existence. The existence of at least some variation in national regulation would certainly put greater pressure on the Commission to adopt common rules, and would add some weight to the Member States’ political call for a European Union alcohol strategy. Thus, the Irish government’s position that Member States should wait for the EU to act has unfortunately led to a regulatory failure on an important public health issue.

In summary, the Public Health (Alcohol) Bill is a bold piece of legislation that seeks to act on the substantial evidence base on alcohol related harm in Ireland. It is within the discretion of the Irish government to adopt, and contains interventions which make justified restrictions to free movement. Assertions that parts of it are not compliant with EU law fail to take account of the fact that EU internal market law preserves the right of the Member States to protect their populations as much as it protects the freedoms of traders. Misinterpretations of this prerogative, or of the reality of EU level public health policy, can potentially lead to inaction and regulatory failure. The Irish government has taken an important step towards reducing the burden of alcohol related harm in Europe, and other Member State governments should be encouraged to follow.

Barnard & Peers: chapter 12, chapter 21

Photo credit: SpunOut.ie

The next phase of the European Border and Coast Guard: towards operational effectiveness

Mariana Gkliati, PhD researcher at Leiden University working on the accountability of Frontex for human rights violations during its operations

Two years after the establishment, in record time, of the European Border and Coast Guard (EBCG), the Commission’s new proposed Regulation opens the way for a standing corps of 10,000 border guards, with its own equipment and greater executive powers.

The proposal was presented during the State of the Union Address on 12 September 2018. President Jean-Claude Juncker, in his speech before the European Parliament, announced the adoption of 18 concrete initiatives, among which migration and borders reform occupied a central spot. Apart from the strengthening of the EBCG, these proposals include a reinforced role for the European Asylum Agency, EASO, a stricter EU returns policy, as well as measures for safe and legal pathways for regular migration to Europe.

The intentions of the Commission were expressed by Commissioner Avramopoulos himself in quite straight lines: ‘more Europe where more Europe is needed’.

Frontex is perhaps the most vivid representation of this message. The agency has been vested with new powers and competences almost every two years since its establishment in 2004, while its operational capacity has been growing steadily, with a spike in both personnel and budget after 2015.

Budget and Personnel

*(I produced this table with information collected mainly from annual reports, partly with the help of student assistant, Nilson Milheiro Anselmo)

This gradual approach was a necessary reconciliation between the Commission’s original vision of fully-integrated border management led by a fully-fledged corps of border guards on the one hand, and the sovereignty concerns of member states on the other.

In 2016 the member states felt that the time was ripe to accept a name that symbolically limits the absolute sovereign control over their borders bringing them closer to a fully integrated scheme of border management, and the European Border and Coast Guard (EBCG) was established. It was apparent already then that this was not a completely new EU agency but rather ‘Frontex reloaded’ with ever more powers and competences and a generous budget.

Already two years later, the EBCG is moving to the next phase, and the word that best describes that phase is ‘effectiveness’. The Commission aims for a strengthened and fully equipped European Border and Coast Guard that is effective and efficient enough to address the ‘capability-expectations gap’ that has resulted from the agency’s dependence on the member states for contributions in border guards and equipment.

This is where President Juncker drew the line between the past and the future of integrated border management: ‘Temporary solidarity is not good enough’ he stated. ‘We need lasting solidarity – today and forever more’.

Main changes

The effectiveness goal is to be achieved mainly with a increased operational capacity in terms of staff and equipment, expanded operational competences, and a sharp budgetary increase.

Standing corps of 10,000 border guards

Perhaps the most monumental change brought by the new Regulation is the establishment of a ‘standing corps of 10,000 operational EU staff with executive power and their own equipment’.

In order to address the vital operational issue of availability of human resources, the EBCG Regulation set in 2016 an absolute minimum of 1,500 seconded border guards and other experts that should be available at any time in order to ensure the effectiveness of the agency on short notice. This comes in addition to the European Return Intervention teams, currently involving 550 return experts. In fact, Frontex had more than 1,700 officers deployed at the EU borders in 2018 assisting with functions such as surveillance, registration, document checks, fingerprinting and security checks. The agency’s own staff has also been growing steadily, as shown in the table below. The agency started with 70 employees in 2006, while there were almost 500 people working in Warsaw in 2017. In the first months of 2018 the agency requited another 162 new staff, which means that one in three working in Warsaw were hired in 2018 alone. The goal is that by 2020 the agency will have 1,500 own staff, which will grow to 3,000 by 2027.

Today’s availability is still not adequate to fill the operational needs of the agency in a predictable and expeditious manner, as it has to rely for its work mainly on border guards provided by the member states on a voluntary basis. The standing corps of 10,000 will constitute a ‘reliable intervention force’ of agency staff and seconded or deployed officers, i.e. border guards and return experts.

The intention is the gradual proportional increase of the agency’s own staff and long-term deployments. The number of short-term deployments will gradually decrease in favor of statutory Agency staff  and staff seconded by member states for long-term duration, as shown in the scheme below.

The foundations for this amendment have already been set over the years, and member states are even more likely to support it because of the envisaged financial support system that will allow member states to replace the deployed personnel and maintain the capacity of their national border authorities. Furthermore, the costs of their salary and overall deployment will be covered by the agency.

Executive powers

The standing corps will have executive powers similar to the border guards and return specialists of the member states. They will be able to authorise or refuse entry at border crossing points, stamp travel documents, patrol borders, and intercept persons crossing irregularly. In addition, they will perform identity checks using the False and Authentic Documents Online system, which the agency will take over from the Council General Secretariat. Finally, the power to carry weapons will extend from the deployed national border guards to all members of the standing corps including agency staff.

Own Equipment

Another step closer to improving the stability, flexibility and autonomy of the agency is the acquisition by the agency of its own equipment. ‘We need more planes, more vessels, more vehicles’, stated President Juncker.

At first, such equipment was made available by the member states on an ad hoc basis, but in 2007, Frontex created the Centralised Record of Available Technical Equipment (CRATE), to which states contribute on a voluntary basis, in accordance with the needs specified by the agency. CRATE was replaced in 2016 by the Technical Equipment Pool, which serves as a record of all technical equipment available to the agency, whether that is owned by a member state or the agency or co-owned by both. However, while the contributions on paper seem to almost fully cover the agency’s needs, the actual availability of the pledged assets by the member states is more problematic, especially during the busier summer months.

Therefore there is a growing emphasis on developing the agency’s own capabilities. As of 2017, Frontex had €10 million per year in its disposal (EUR 40 million in total for 2017-2020) to acquire its own equipment, while co-ownership with a member state, renting, leasing, and long-term deployments were identified as additional options in the EBCG Regulation in 2016.

The agency has already started acquiring smaller pieces of equipment and running relevant leasing and rental projects, while now the goal is to move to larger items, such as vessels and planes. The Commission has now earmarked €2.2 billion of the EU budget for 2021-2027 to allow Frontex to acquire, but also to maintain and operate the necessary air, maritime and land assets.

Budget

The budget allocated for Frontex notes a sharp increase. An additional €2.3 billion is proposed for 2019-2020, which is followed by €11.3 billion proposed for the 2021-2027 period. This increase is in conformity with the general direction of the last years, especially since 2015, as shown in the Table. However, the allocated budget has always counted millions rather than billions. The highest allocation until now was in 2017 with €302 million.

Power to Intervene

The ‘right to intervene’ was one of the most controversial aspects of the 2016 EBCG Regulation. According to this right, the agency may launch an emergency intervention, even without the consent of the member state, if the latter does not take the measures identified by the agency in the vulnerability assessment, if the member state is faced with a crisis at its borders. If the member state does not cooperate with the implementation of the suggested measures, it’s threatened with the reintroduction of internal border checks.

Precisely because of the sensitive nature of the issue, the initial proposal was watered-down in 2016. While initially the agency could intervene on its own, in the final compromise the measures proposed by the agency can be implemented by the Council upon the proposal of the Commission.

The 2018 proposal moves one step closer to the initial conception, with the right to intervene being left to the Commission excluding the participation of the Council.

Returns

Returns have been the fastest growing activity of the agency. Frontex acquired further competences in 2016, mainly including organising and coordinating joint return operations. This resulted to 14,884 persons being  returned in 2017. Returns reached 8,966 from January to August 2018. However, the agency could not enter into the merits of return decisions or provide supporting information.

With the 2018 proposal the agency may now prepare return decisions itself and provide its own return escorts. It may also assist in the acquisition of travel documents, the identification of irregular migrants, and in the development of national return management systems. The central tasks of hosting an operation remain with the member state.

Finally, Frontex will be able to assist non-EU states with their return activities elsewhere, which include mixed return operations with the participation of member states.

Third Countries

Apart from assisting non-EU countries in their own return activities, the cooperation with third countries is strengthened even further. The option to launch an operation in a third neighboring country was introduced in 2016. The new proposal allows a border control operation to be launched in any third country not limited to neighboring countries.

Further, the establishment of ‘disembarkation centres’ on third countries is proposed for migrants intercepted at high sea. The concept of regional disembarkation is developed in contact with UNHCR and the IOM. Notably, Libya has for the moment turned down the idea.

Controlled Centres

Frontex will participate in the deployment of migration management support teams in hotspots and controlled centres. Such centres, to be set up by member states on a voluntary basis, will act as a cetralised location for EU migration management activities and aim to facilitate and accelerate the processing of asylum claims and  the execution of return decisions. All necessary steps should be concluded within a maximum of eight weeks.

Frontex will work there hand in hand with EASO, which also receives an enhanced mandate, assisting in the identification of beneficiaries of international protection and in returns, while EASO will support in the processing of asylum applications.

Supranationalisation and accountability

Even though the enhancement of the powers and competences of Frontex seems to come as a response to ad hoc incentives, such as the ‘migration crisis’ in 2016 or the need for greater effectiveness today, these changes are in fact far from incidental. They reflect the Commission’s longer-term vision for progressive integration that will result in a European Border Guard vested with full operational powers, effectively replacing the national border authorities.

In this respect the Commission proceeds to progressively ask for the increase of the number of available border guards and budget, but it also pushes for amendments that failed to pass the trilateral dialogues already in 2016, such as the right to intervene without the consent of the member state. This is a big leap towards supranationalisation that member states have so far been unwilling to take.

Greater autonomy and control over the operation, however, also moves Frontex closer to the realm of accountability. With growing executive powers and operational mandate, and direct control over the deployed personnel and equipment comes an even greater need for accountability.

This is especially so given the new mandate of the agency, for instance in the area of returns, where Frontex will have the power to prepare return decisions. The Commission emphasizes that the final decision remains upon the member state. However, the complaints concerning EASO, and the beyond its mandate influence on the asylum decision-making process in Greek hotspots, sets a disturbing precedence that should not be underestimated in the case of the EBCG.

Frontex operations are particularly sensitive to human rights violations, and with the individual complaints mechanism, established in 2016, falling remarkably short of the standards of an effective remedy, accountability for Frontex still remains an open end.

*Update: the law discussed above was agreed by the Council and European Parliament in spring 2019. For a discussion of the final version, see this blog post from April 2019.

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: European Parliament