Friday, 16 November 2018

Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at

As the Brexit clock ticks down, and the diametrically opposed objectives of Theresa May's negotiating imperatives become ever more exposed, the clamour to clarify the processes and procedures surrounding Brexit intensifies.

At the tail end of 2017, a group of seven Scottish politicians, from across the political spectrum and from all three legislatures for Scotland (the Scottish Parliament, the UK Parliament and the European Parliament) commenced an action in the Scottish Court of Session, essentially seeking an answer to the simple question 'Can a member State of the European Union unilaterally revoke their Article 50 TEU notification to leave the EU?' The group is headed by Andy Wightman MSP, and the other pursuers are Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP and Joanna Cherry QC MP. English MPs Tom Brake and Chris Leslie were joined in the case in May 2018.  The case was crowdfunded through the Good Law Project, headed by Jolyon Maugham, who is also a petitioner.

The pursuers are keen to know the answer to this question since they believe that the route to Brexit is not unidirectional and binary. For the pursuers, representing constituents in a nation of the United Kingdom which voted overwhelmingly to remain in the EU referendum, Brexit does not have to result in 'Deal or No Deal'. Rather, there may be a third way: A People's Vote that includes the option to Remain in the European Union.

In order for a Scottish court to make any pronouncement on this legal question, the court would have to send a preliminary reference request to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union since Article 50 TEU is a provision of EU law and by definition, only the CJEU can offer a binding interpretation of EU law for the entire EU.

In February 2018, the pursuer's application for judicial review (subject, in Scotland, to the Court of Session Act 1988, s. 27B) was refused by Lord Doherty in the Outer House of the Court of Session, on the basis that the question of the revocability or otherwise of an Article 50 TEU notification was a purely hypothetical and academic one, since both the UK Parliament and Her Majesty's Government had no yearning to resile from the path to Brexit (paras 10-14 of the judgment).  In particular, Lord Doherty opined that the pursuer's action had no reasonable prospect of success (para 8; see s 27B(2)(b) of the Act) since the matter was not a justiciable matter suitable for judicial determination.

The pursuers appealed the decision to refuse the judicial review and accompanying CJEU reference to a bench of three Scottish judges in the Inner House of the Court of Session by way of a reclaiming motion (which is the process whereby a decision of the Outer House of the Court of Session can be appealed). In their judgment, the panel of three judges heavily criticised the terms of the original judicial review pleadings as being overly complicated, unclear and potentially confusing and fell way below the standards expected for a judicial review application. (The clarity and structure expected in a judicial review claim were set out by Lord Hope in Somerville v The Scottish Ministers [2007] UKHL 44, at paras. 39, 46, 52 and 65. See also Lord Rodger's dicta at para. 88) Nevertheless, given the constitutional importance of the question raised, their lordships were minded to forgive such careless drafting and allow the appeal and remit the case to the Inner House for judgment (para 12). In the opinion of their lordships, the case was neither academic nor hypothetical given that the UK Government could be asked to revoke the Article 50 TEU notification at the request of the UK Parliament (para 30). But, even where the case were to proceed, the pursuers would need time to revisit and rephrase their averments (para 34).

Following a much amended set of pleadings, Lord Boyd of Duncansby heard the application for judicial review in June 2018. Lord Boyd refused the application and thus with it any chance of a preliminary reference request being submitted to the European Court of Justice (para 75). His Lordship's opinion hinged on the hypothetical and speculative nature of the claim. At the time of the judgment, the EU (Withdrawal) Act 2018 was still a bill progressing through Parliament and thus a definitive date for UK withdrawal from the European Union had not yet been set out as a matter of UK law. Rather, the date of exit of the UK was only set out as a matter of EU law as per the terms of Article 50(3) TEU, that is the date of entry into force of the withdrawal agreement or two years from the date of Article 50 notification itself.

As is well known, the European Court of Justice does not entertain national courts submitting hypothetical questions concerning EU law (see, for instance, Foglia v Novello). The preliminary ruling procedure is a practical cooperative link (for example, Case C‑470/12 Pohotovost) between the national courts of the member States and the Court of Justice of the EU, designed to help the national courts decide cases in which the interpretation of EU law is integral to the resolution of the dispute before the national court. (In the Scottish context, see the case of Scotch Whisky Association v Lord Advocate, discussed here) Having reviewed the authorities in this matter, Lord Boyd declared that the case was a hypothetical one which did not need to be answered in order for him to give judgment. He also stated that this position was synonymous with the position adopted by the Scottish courts as to hypothetical cases before them (for example, see Macnaughton v Macnaughton Trustees 1954 S.C. 312 as discussed by Lord Boyd at para. 48).

The petitioners, in their case, also objected to the stated position of UK Ministers that outlines that Article 50 TEU is not unilaterally revocable. Indeed, in the earlier seminal constitutional case of Miller,  the question of unilateral revocability of Article 50 TEU was assumed by both parties to be answered in the negative (para 10 of that judgment). Lord Boyd refused to entertain an in-depth discussion as to the legal appropriateness of the stated position of UK Ministers on the revocability of Article 50 TEU on the basis that were he to do so, this would be a usurpation of Parliamentary privilege and contrary to Article 9 of the Bill of Rights 1689 (paras 54-58 of his judgment). 

The pursuers then immediately appealed to the Inner House of the Court of Session, where their reclaiming motion was successful. The judgment of the Inner House was delivered on the 21st of September 2018. The Inner House found for the Reclaimers on a number of grounds. Lord Carloway, the Lord President, dismissed the UK Government's claim that the judicial review action was not competent because the order sought was not practical. On the contrary, Lord Carloway considered that the issue was justiciable precisely because there was such controversy as to the appropriate way forward within the parliamentary process (paras 22-23 of the judgment). More significantly, the court also found that the case was no longer hypothetical since in between the date of the judgment by Lord Boyd and the present case, the EU (Withdrawal) Act 2018 had now passed onto the statute books and certain provisions of that Act had come into force.

In particular, section 13 of the Act – the “meaningful vote” section – provides that the UK Parliament will be faced with a binary choice after a withdrawal agreement has been provisionally agreed between Her Majesty's Government and the European Union: Parliament must either approve the terms of the withdrawal agreement and accompanying text on the future framework for UK-EU relations or not approve. In the event that approval has not been forthcoming, the Government must inform the Parliament of how it intends to proceed within 21 days of the decision not to approve. Further, in the period up to the 21st of January 2019, if the Government again considers that no deal can be agreed then Parliament must be told of how the Government intends to proceed and again after the 21st of January 2019, the Government must inform Parliament of how it intends to proceed.

In all of these scenarios, there is a presupposition that both the Brexit clock inexorably continues to countdown to the 29th of March 2019 and that the choice for the UK Parliament is stark: Deal or No Deal. The Scottish politicians at the heart of this case contended that there is an alternative to this dystopian vision: The UK population can be given a People's Vote on the terms of the deal, including an option to Remain in the EU. However, this option will only be realisable if the UK's automatic exit from the EU on the 29th of March 2019 can be postponed and the only ways to disapply the automatic departure of the UK is by the UK either securing the agreement of the 27 other Member States to extend the Article 50 TEU time period or by unilateral rescission of the Article 50 TEU notification.  If neither of these options can be secured, then clearly, given that it is November 2018, there will be insufficient time to organise the necessary preparations for what would be in effect a second referendum on UK membership of the EU.

In the reclaiming motion, the Scottish judges approved the text of the question that they wished to send to the CJEU (see the Appendix to the judgment). The question is thus:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU.”

Given that time is of the utmost essence in this case, the Scottish court expressly requested use of the expedited procedure (see Article 105 of the Rules of Procedure of the CJEU) before the Luxembourg court. At present, the average time taken for the CJEU to deliver a ruling under the Article 267 TFEU procedure is 15.7 months (page 114 of the 2017 Annual Report of the CJEU) . Such a timeframe would, ironically, render the judgment academic since the UK is heading towards Brexit in just over four months.  However, even with the expedited procedure, the Court will in all likelihood take between 3 and 5 months to render a judgment. Even this timeframe is problematic given that, at the time of writing, the UK and the EU have agreed a provisional withdrawal agreement on the 13th of November 2018.

In order for the issue of the revocability of Article 50 TEU to have practical import, UK politicians would need to know the answer to this question before they are asked to perform their constitutional task of participating in a meaningful vote on the terms of the withdrawal agreement. Given that there is an agreement in principle in existence between the UK and EU, it is likely that UK MPs will be asked to vote on the terms of the deal before the Christmas parliamentary recess, a mere six weeks away.

The window of opportunity for the CJEU is exceedingly tight. It received the Scottish reference on the 3rd of October 2018. Sixteen days later, the President of the CJEU confirmed that, given the constitutional seriousness of the case, the case would be expedited. It will be heard on the 27th of November 2018.

The UK Government has formally objected to this preliminary ruling request on a number of fronts. Firstly, the UK Government has submitted observations to the CJEU to the effect that the question from the Scottish court is still a hypothetical one and that the CJEU has overstepped its judicial role in effectively acquiescing in this subterfuge. These arguments can be dealt with cursorily. As a cooperative horizontal judicial process between national courts and the CJEU, it is for the national court alone to determine the appropriateness of sending an EU law question to the CJEU for adjudication. As such, it is a subjective task for the judges seised of the case before them to assess whether they require a resolution to an EU law question in order to enable them to make a decision (See for example, Case 126/80 Salonia).  Secondly, if that is the case, then the answer from the CJEU is not merely an advisory one, rather it is a sine qua non of the national judges preforming their constructive and practical constitutional role.

The UK Government's second approach to taking exception to this Scottish court reference was to challenge the process of requesting assistance from the CJEU itself. The Advocate General for Scotland alleged that the proper course for this issue should have been for the Court of Session to have appealed the case up to the UK's Supreme Court for adjudication rather than sending the case to Luxembourg. The Inner House of the Court of Session, on the 8th of November 2018 refused leave to appeal to the Supreme Court. The UK Government has not given up and has more recently submitted legal papers to try to get the Supreme Court to order cancellation of the reference request from the Court of Session. The Supreme Court has confirmed receipt of these legal papers and has assigned the case to Lady Hale, Lord Reed and Lord Mance. It is to be expected that a ruling will be forthcoming from the Supreme Court given the Supreme Court's statement itself that it is aware of the urgency of the matter and the fact that the CJEU will hear the Wightman case on the 27th of November 2018.

Regardless of the relative merits or demerits of such an approach by the UK Government, these legal actions evidence a worryingly poor grasp of EU law principles. It is a well-established doctrine of EU law that the Article 267 TFEU Preliminary Ruling Procedure is not an appeal mechanism and as such national courts are free to submit requests to the Luxembourg court, free of any interference from higher national courts (See for example Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 and Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l'Estero ECLI:EU:C:1988:194).

Superior courts of the Member States are of course free to issue guidelines to the lower courts on when references should be sent to the CJEU (See for example the dicta of Sir Thomas Bingham MR in R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 and the case of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)), and the CJEU itself issues guidelines on how to refer EU law questions to it, however, these guidelines cannot fetter the wide discretion afforded to national courts to make their own decision on the appropriateness of an Article 267 TFEU reference.  The lack of knowledge of basic underpinnings of EU law at the heart of the UK Government is either negligence writ large or an unashamed attempt to circumvent well established judicial lines of communication between national courts and the CJEU. Either way, it diminishes the reputation of UK Plc. and conversely enhances the standing and reputation of the Scottish courts and politicians.

Nevertheless, inexorably the Brexit clock lurches forward and it remains to be seen whether Scotland can Scotch Brexit for the evident utility of the entire United Kingdom.

Barnard & Peers: chapter 27
Photo credit:

Tuesday, 13 November 2018

CJEU case law on EU citizenship: normatively consistent? Unlikely! - A response to Davies’ ‘Has the Court changed, or have the cases?’

Alexander Hoogenboom, PhD, MSc. LL.M. Senior Policy Officer at the Dutch Healthcare Authority and associate researcher at the Institute for Transnational and Euregional cross border cooperation and Mobility, Faculty of law, Maastricht University. The position taken in this paper solely reflects the views of the author.


Recent case law of the Court of Justice on EU citizens’ access to benefits has been seen by some as a restrictive turn compared to prior case law, in response to a rise in populism. However, the article by Davies in a recent special issue of the Journal of European Public Policy is to be commended for its original take on this alleged ‘turn to restrictiveness’. The goal of his article is, as I see it, questioning whether the Court has indeed recently become stricter (in the sense of more State-friendly, less Union citizen-friendly) in response to the populist turn in the European political landscape. In that vein, Davies submits, contrary to what he sees is the main thrust in the scholarship, that the court has been ‘normatively consistent’ (see also this research paper he authored) and that the perceived difference in recent litigation outcomes from the golden years of Union citizenship are due to the litigants being less ‘deserving’ of access to benefits provided by the host Member State: ‘what goes in will provide an overwhelmingly plausible explanation of the outcomes on its own’.

This argument is supported by relying on a methodology for measuring the ‘deservedness’ of the litigants based on a set of indicators: the ‘good behaviour’ of the applicant, the possibility for exceptional harm should the benefit be denied, the possible cost to society resulting from the grant of a benefit (e.g. because it is long-term or applies to a large category of persons), whether granting the benefit would mandate a particular positive outcome and whether the State was somehow at fault for the specific conundrum that the litigant finds him or herself in.  The more ‘deserving’ (high contribution to society, low cost), the greater the likelihood of a litigant-positive result.

Applying these criteria to a selection of case law, Davies proceeds to show that indeed, the Dano’s (never worked, never integrated, lacked resources for self-support) of the world seem to be less deserving of benefits than the Sala’s (long-term legal resident, child benefit denied due to a technicality by an inconsistent state). (On the Dano case – the first judgment showing the perceived turn toward a stricter approach – see the discussion here).

There are, however, a few issues one could take with this approach. In part, it is questionable whether the facts as available to scholars of EU law decisions allow one to accurately apply the proposed test – especially given that the publication of the Reports for the Hearing was abolished since 2012 (see also para 119 of the AG opinion in Breyer). This is exacerbated, as Davies admits, by the fact that a negative outcome throws its shadow forwards: one then tends to present the facts in such a way as to support the later conclusion.

In part, it is questionable whether deservedness is objectively verifiable: after all, one could also argue that the rise of populism or say an economic crisis – the ‘times we live in’ – simply provide a different kind of lens through which to view the migratory Union citizen. The same fresh-faced youth enrolling in higher education in a Member State different from the one of his nationality can be cast as a self-improving, future productive member of that society (compare to Gravier, para 24) or as a welfare-abusing, locust-like creature eating his or her fill and subsequently returning from whence he or she came (see the main arguments by Belgium and Austria in the the judgment in Bressol).

However, the main challenge I would like to level is that the methodology suggested is applied to an incomplete ‘data set’ (the cases), in part due to selection bias (the focus in the article on the cases ‘most discussed’).

Grzelczyk by another name: The curious case of Förster

The case of Grzelczyk is among those used by Davies to support his thesis: his particular circumstances ‘paint a sympathetic picture’. A hard-working young Frenchman, resident in Belgium for some time and whose claim to financial support finish his last few months of study would seem altogether reasonable. Indeed, the Court, while leaving it to the national court to make the final decision, seemed to suggest he should be so entitled.

Nonetheless, the Court was not so generous in Förster. Jacqueline Förster was a German national who grew up in a town not far from the Dutch border. She moved to and resided in the Netherlands from March 2000 onwards – partly to be with her Dutch boyfriend. There, she enrolled into a teacher training programme and later in a course on educational theory at the Hogeschool van Amsterdam. In the period 2000-2002 she undertook various part-time jobs, until she engaged in full-time paid practical training at a Dutch school providing secondary education for children with special needs (October 2002 – June 2003). After her practical training she did not engage in gainful employment until July 2004. She graduated from her course that summer.

At stake was the intermezzo period: the Dutch Student Benefit Authority (then called IB-Groep) assessed in 2005 that she had not been eligible for study maintenance assistance in the second half of 2003 and ordered her to repay the amounts received.

It would seem to me that Ms. Förster ticked practically the same as mr. Grzelczyk. Measuring her ‘deservedness’ according to the matrix suggested by Davies we find:

-       Good behaviour: self-support initially (three years), enrolled in studies and contributing to Dutch society even during her studies in her practical training period. Advocate-General Mazàk moreover made the explicit point that she did not seem to have moved with the goal of claiming benefits.
-       Exceptional harm: Although the withdrawal of the benefit was retroactive, when assessing her right to access the benefit as matters stood in 2003 one could plausibly maintain that, as with Grzelczyk, non-access to the benefit would have made the completion of the degree much more difficult.
-       The support requested covered only a limited time: at issue was a six-month period only.
-       Limited cost of the support: As with Grzelczyk, this aspect is hard to estimate.
-       Positive outcomes: the completion of the degree would enable her to contribute to Dutch society and economy as a teacher.
-       State at fault: One could make the argument that given the fact that they had initially granted her the benefit and only much later (some one and a half years) took the final decision to recover the amount, should count against the Dutch state.

Finally, in addition to these elements from Davies’ deservedness matrix, the applicant had a relationship with a Dutch national and given her work, presumably, spoke fluent Dutch – both elements that the Court in other cases has found relevant when assessing eligibility to benefits (see Prinz and Seeberger, for instance).

All in all, one would assume, from the methodology applied that this applicant should be successful, or that should have led to a ‘discretionary-result-with-a-hint-in-favour-of-the applicant’. Yet, she categorically lost her case, notwithstanding the suggestion by the Advocate-General to consider the circumstances of the case along the lines suggested above. Yes, the conclusion was (partly) mandated by the EU citizens’ Directive 2004/38, but the Court certainly did not ‘bend over backwards to find exceptions to [this] restriction’ as his matrix would predict.

The cases of Commission v Austria and Commission v the Netherlands are perhaps even more glaring. The issue concerned a travel benefit aimed at students attending higher education. In the Austrian case, decided in 2012, Austria argued that it could refuse access to the benefit where the Union citizen in question had not yet obtained a right to permanent residence (a five-year prior residence requirement in practice). In contrast, the Court found that all persons enrolled in higher education should have automatic access.

The case is somewhat hard to fit into the matrix, but intuitively one could argue that the Court was not swayed by the hypothetical good behaviour of potential beneficiaries (no prior residence requirements, no integration), nor was the benefit for a limited time (it could last the entire study period), all persons enrolled in higher education persons were eligible (no ‘limited costs’) and it is hard to imagine an ‘exceptional harm’ had the benefit been denied to the hypothetical applicant. Notwithstanding this apparent lack of deservedness, however, a positive outcome for the hypothetical beneficiaries.

In 2016, in Commission v the Netherlands, the Court reached the opposite conclusion. The benefit at issue was in all respects the same as at stake in Commission v Austria (Table taken from A. Hoogenboom, Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union (BRILL, 2017)):

The Netherlands
Nature of the benefit
Fee reduction for the use of public transport (grant)
Free use of public transport on some days of the week; reduced fees on the other days (conditional grant)
Apparent purpose
To facilitate access to education
To facilitate access to education
Commercial public transport operators
Commercial public transport operators
The individual governments of several Länder
Central Dutch government
Enrolment higher education
Parents in receipt of Austrian family allowances
Enrolment in higher education.
Student in receipt of Dutch studiefinanciering

Here the Court decided that the Netherlands could restrict the benefit along the terms suggested by Austria in the earlier case. It stretched the limits of consistency by trying to distinguish the latter case with a bizarre reference to the difference in national classification of the benefit, despite it being settled case law that such classifications are irrelevant - a point the Court itself made in Commission v Austria.

So here we initially have a judgment against the State and in favour of the Union citizen, whereas the matrix would likely predict a judgment in favour of the State. Four years later the Court came, on largely the same facts, to the opposite conclusion. This should not be seen as a (late) vindication of the matrix however, since the Court formally distinguished the latter case from the former, meaning that both cases continue to be good law.


Whereas the line of inquiry presented in Davies’ paper is an interesting one, it cannot account adequately account for the existence of Förster and the Commission v Austria/Netherlands saga. Apparently deserving applicants get rejected, and the same benefit with a similar hypothetical user base gets a different legal treatment in the space of a few years. Two possible explanations suggest themselves:

-       The Court is not consistent. This would mean that Davies’ hypothesis is disproven.
-       The matrix presented, by which the court supposedly measures deservedness, is flawed. This goes to the methodology used and means that we simply haven’t found calculus that the Court uses.

It would seem to me that the existence of both Commission v Austria and Commission v the Netherlands as ‘good law’ seems to hint at the former. In any case, however, to argue that the Court of Justice is normatively consistent, on the basis of the analysis carried out by Davies, is a bridge too far.

Barnard & Peers: chapter 13
Photo credit: i newspaper

Monday, 12 November 2018

The effectiveness of the right to family reunion of refugees: An analysis of the K. & B. ruling of the CJEU

Mark Klaassen, Assistant professor at the Institute of Immigration Law at Leiden University


For most EU Member States (the UK, Ireland and Denmark have opted out), family reunion between non-EU citizens residing on their territory and their non-EU citizen family members living abroad is governed by Directive 2003/86. This Directive includes a more favourable regime for refugees seeking family reunion, which Member States may limit to family relationships which predate entry to the Member State. These exceptions include the waiver of a number of conditions for family reunion: the optional derogation for those over 12; the conditions relating to accommodation, sickness insurance and “stable and regular resources”; and the waiting period. The rules on evidence of family relationships are also relaxed, in the event that documentary evidence is unavailable. Finally, the optional “integration measures” requirement can only be applied after family reunion, whether the family relationship existed before entry or not. 

However, Member States may limit the application of this more favourable regime as regards the waiver of the conditions relating to accommodation, sickness insurance and stable and regular resources if the sponsor or family members have “special links” with a non-EU country where family reunion is possible, or if the application for family reunification was lodged within a period of three months after refugee status has been granted. This latter competence is laid down in the last sub-paragraph of Article 12(1) of the Directive.

But how must the Member States deal with applications for family reunification by beneficiaries of international protection which are lodged after this three months period? This is essentially the question in Case C-380/17 K. & B., that was submitted to the Court of Justice of the EU (the Court) for a preliminary ruling by the Council of State – the Dutch court of highest instance in immigration matters.

In this blog I will first sketch the implementation of Article 12(1) of the Directive in the Netherlands. Then I will discuss the cases that have led to the preliminary reference. After that I will summarise the ruling of the Court. Finally I will discuss the implications of the ruling for the family reunification of refugees. Note that the judgment also confirmed the Court’s jurisdiction to interpret the Directive for the family reunion of persons with subsidiary protection in the Netherlands, even though they are excluded from the scope of the Directive, because the Netherlands has chosen to apply the Directive to them in the same way as refugees. I will not elaborate on the jurisdiction issue further.

Family reunification of refugees in the Netherlands

In the Netherlands there is a one-status system, meaning that no distinction is made between refugee status and subsidiary protection status. This has implications for the implementation of the Directive. Beneficiaries of subsidiary protection are excluded from the Directive. However, as no distinction between refugees and beneficiaries of subsidiary protection is made in Dutch asylum law, all beneficiaries of international protection are eligible for family reunification pursuant to the implementation of the Directive. From the moment that international protection is granted, the sponsor has three months to make the application for family reunification of family members that were left behind in the country of origin. In case the application is made within this three month period, no substantive requirements for family reunification are imposed, as is required by Article 12(1) Directive. Also, no administrative fee is charged for making the application.

When the application is made after the three months period has passed, the application is rejected. Only in very exceptional circumstances is an application lodged outside of the three months period accepted – even though there is no legal basis for that in Dutch law. In making the determination whether such special circumstances apply, the Dutch authorities neither take the best interests of the child (Article 5(5) Directive) nor the specific individual circumstances of the case (Article 17 Directive) into account. A sponsor with international protection status is eligible to submit a “regular” application for family reunification outside the three month period. In regular applications, the substantive requirements – which are based on Article 7(1) of the Directive – are fully applicable.

The applicants in K. and B.

Applicant K. is the Afghan mother of an unaccompanied minor in the Netherlands. The minor sponsor has been granted international protection in the Netherlands on 14 February 2012. As an unaccompanied minor, the legal guardian was assigned to the sponsor. The sponsor applied to be reunited with his mother on 27 November 2013. From the order of reference, it appears that his legal guardian did not inform the applicant of the possibility to apply for family reunion. The application was rejected because it was not made within the three month period after being granted international protection.

An appeal was lodged with the District Court of Zwolle, which ruled in favour of the applicant. Referring to the best interests of the child as laid down in Article 3(1) of the UN Convention on the Rights of the Child and the case law of the European Court of Human Rights on Article 8 ECHR (the right to private and family life), the District Court held that the Secretary was bound to make an individual assessment of the competing interests involved in the case. The Secretary appealed the decision of the District Court to the Council of State, which is the referring court in this case. In the order of reference to the Court, the Council of State blames the sponsor – who was fifteen years old on the moment the application was lodged – for not informing himself of the three months’ period in which the application for family reunification must be made. The Council of State deems that it was reasonable to attribute the lack of information provided by the legal guardian to the minor sponsor.

Applicant B. is the baby daughter of an Eritrean national who was granted international protection in the Netherlands on 23 September 2014. The sponsor applied to be reunited with his wife and baby daughter on 22 January 2015. The application was lodged one month after the three month period had elapsed. The applicant appealed the rejection of his application to the District Court of Amsterdam. His appeal was rejected on 24 June 2016, upon which he lodged a subsequent appeal to the Council of State. The reason for the late submission of the application was a misunderstanding between the sponsor and the Dutch Refugee Council, which has a formalised role in assisting beneficiaries of international protection in making an application for family reunification. He misinterpreted a conversation with the Dutch Refugee Council. In the order for reference to the Court, the Council of State attributes the misunderstanding to the applicant.

These two cases are no exceptions. In 2014 the Advisory Committee on Migrations Affairs – an independent Committee that advises the Dutch Government and Parliament on immigration law and policy – expressed the view that the absolute character of the three months’ period is problematic. The Committee held that it is important that beneficiaries of international protection are swiftly reunited with their family members, also in view of the integration in Dutch society. The Committee advised the Dutch government to proactively ask each beneficiary of international protection whether they want to apply for family reunion and to introduce a hardship clause for situations in which an application is made outside the three months’ period.

The ruling of the Court

The Court rules that the EU legislature has explicitly allowed the Member States to apply the conditions from Article 7(1) Directive to refugees who apply for family reunification after the time limit from Article 12(1) has elapsed (para 46). Based on that, the Member States are allowed not to process applications made after the three months’ period has elapsed under the more favourable rules for refugees but under the general rules instead (para. 47).

According to the Court, the EU legislature did not regulate on the procedure to be followed regarding out of time applications (para. 55). Therefore, the principle of procedural autonomy applies, which is limited by the general principles of equivalence and effectiveness (para. 56). The latter principle requires that the national procedure may not render the rights conferred by the Directive impossible in practice or excessively difficult. Concerning the application of the three month period, the Court finds that rejecting an application for not being made within the three month period does not per se render the exercise of the right to family reunification impossible in practice or excessively difficult when a fresh application can be lodged in which the conditions of Article 7(1) are applicable (para. 59). In this manner, the right to family reunification can still be safeguarded (para. 60). The Court notes that this is not the case in situations in which the late submission of the application is objectively excusable (para. 62).

In this regard, the Member States must fully inform the applicant of the consequences of rejecting the application for non-compliance with the three month period. Besides that, the Member State must inform the applicant how the right to family reunification can nevertheless be effectively realised (para. 63). The Court concludes by remarking that even though the Member States are allowed to impose the requirements of Article 7(1) Directive in case an application is lodged after the three months’ period has elapsed, the other provisions of the Chapter on family reunification of refugees still apply (para. 64-65).

Analysis: A pyrrhic victory for the Dutch government?

The ruling of the Court means that the distinction that is made in Dutch immigration law between the family reunification of beneficiaries of international protection and “regular” family reunification can be maintained. However, in the application of the “regular” family reunification regime, the fact that a sponsor has been granted international protection must be taken into account (para. 53). In the refugee family reunification procedure, there must be a codification of the requirement to not apply the three months’ period in cases in which it was objectively excusable that the application was lodged out of time.

This is the second ruling of the Court on family reunification of refugees in the Netherlands. In the A. & S. judgment (discussed here), the Court held that an unaccompanied minor who is considered a minor on the moment that he lodged the application for international protection has the right to family reunification with family members that were left behind in the country of origin. Essentially that case also considered the procedural autonomy of the Member States to regulate where the Directive does not provide for procedural rules. The Court held that to make the right to family reunification dependent on the moment on which the domestic authorities grant international protection would call the effectiveness of the protection provided for by the Directive into question (A. & S., para 55).

It is also in line with the interpretation of the Court with other provisions of the Directive. In Chakroun, the Court held that the competence of the Member State to require the sponsor to demonstrate stable, regular and sufficient resources may not be used in a manner which would undermine the effectiveness of the right to family reunification (Chakroun, para. 43). The Court confirmed this position in O., S. & L., in which the Court strongly emphasised the role of fundamental rights in determining the competence of the member states in imposing the requirement of stable, regular and sufficient resources (O., S. & L., para. 80). In that case, the Court held that “[i]t is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned. (para. 81)”  

The K. & B. judgment has demonstrated that even when an application was made outside the three month period laid down in Article 12(1) Directive, the effectiveness of the right to family reunification of a person with international protection may not be undermined by the application of the conditions of Article 7(1) Directive. This conclusion might sound obvious, but nevertheless has far-reaching implications.

To what extent can it be expected from the applicants in this case to comply with the stable and regular sufficient resources requirement? In order to answer this question, it is interesting to take a look at the drafting history of the Directive. In the initial proposal of the European Commission, refugees were always exempted from the substantive conditions, as “[r]efugees and persons enjoying subsidiary protection, given the overriding reasons why they have had to flee their country of origin and cannot lead a normal family life, cannot be subjected to the same additional conditions without their right lead a family life being imperilledCOM/1999/638 final. Even though the EU’s qualification Directive gives them a right to seek employment, beneficiaries of international protection start with an enormous backlog on the labour market, so requiring them to comply with the requirement of stable and regular sufficient resources could undermine the effectiveness of the right to family reunification. In this context, the reasoning of the Court in O., S. & L. that “a balanced and reasonable assessment of all the interests in play” must be conducted, is of utmost importance.

It must be noted that this assessment is different from the balancing of interests under the ECtHR case law on Article 8 ECHR, as the Directive grants a subjective right to family reunification. The question which must be assessed it whether imposing the stable and regular sufficient resources requirement would undermine the effectiveness of the Directive. The question is not (as under the ECtHR case law) whether a fair balance has been struck between the individual interest and the interests of the state to control immigration.

Lastly, as noted above, Article 12(1) allows the Member States to impose the conditions of Article 7(1) in case an application is lodged after the three month period has elapsed. This does not include the requirement to comply with integration measures from Article 7(2) Directive. This means that refugees can never be subjected to the requirement to pass a pre-entry integration exam in the country of origin, also in cases in which the application is lodged outside the three month period.

Barnard & Peers: chapter 26
JHA4: chapter I:6
Photo credit: AP/Boris Grdanoski

Sunday, 11 November 2018

You can teach a new court Mangold tricks – the horizontal effect of the Charter right to paid annual leave

Filippo Fontanelli, Senior Lecturer in International Economic Law, University of Edinburgh

On 6 November 2018, the Court of Justice of the European Union (the Court) delivered three judgments relating to paid annual leave. Some of its remarks transcend the specific topic, and touch on constitutional matters: the impact of the EU Charter of Fundamental Rights on private parties, the allocation of competences between the EU and the Member States, and the application of EU secondary law.

These cases teach a couple of lessons, and raise a wider point. The lessons are useful: first, alongside the right to non-discrimination and effective judicial protection, the right to annual paid leave in the Charter has direct effect not only in vertical disputes (ie disputes between the individual and the State), but also in horizontal disputes (ie disputes between individuals), even though EU Directives dealing with the same issue still do not in themselves have such horizontal direct effect.  Second, the Charter sometimes binds State acts in a decisive manner. This occurs rarely and, curiously, so far exclusively in disputes between individuals, when the domestic law transposing a directive is not in good order.

The wider point concerns the Charter’s application to domestic measures. In these cases, EU secondary law could not displace domestic measures, because Germany had not transposed a directive correctly. The directive’s mere existence, however, warranted the Charter’s application, and in turn enabled domestic courts to disregard German law and enforce the right to annual paid leave.

The now familiar combo “unimplemented directive plus Charter right” seems a Munchhausen trick. To justify the practice, one should go back to the Mangold case (in which the CJEU ruled that, prior to the Charter having binding force, the general principles of EU law meant that the right to non-discrimination could apply between private parties even if a Member State had not implemented a Directive), and perhaps look deeper into the difference between direct applicability and direct effect, or between a norm’s application and its scope of application. After looking back and looking in-depth, it is still difficult to see precisely how the Charter applied.

The judgments

In cases C-619/16 and C-684/16 Kreuziger and Max Planck, the facts were comparable. Messrs Kreuziger and Shimizu, respectively employed by the Land of Berlin and the Max Planck Institute, had failed to take the entire period of paid annual leave to which they were entitled. After their employment ended, the former employers denied their request to receive payment in lieu of leave. German law appeared to authorise the employers’ position that a failure to request paid annual leave automatically entailed its lapse upon termination.

The Court disposed of the Kreuziger case quickly, due to the dispute’s vertical nature (the employer was a German Land). Article 7 of Directive 2003/88 (the working time Directive) clearly confers the right to paid annual leave and, accordingly, payment in lieu for the leave not taken; the Court recently ruled on this issue in Bollacke. The Court dusted off the direct effect spiel. Since “provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals, in particular against a Member State and all the organs of its administration” [21], individuals can invoke the Directive and the judges must set aside domestic law if need be. The automatic lapse of this right upon termination of employment, without any safeguard to make sure that the employee could exercise it beforehand, violated EU law.

The reasoning of the Max Planck ruling extended further, since the main proceedings concerned a dispute between private parties. The reasoning of Kreuziger was copy-pasted: Article 7 of the Directive precludes an automatic lapse of the right to paid leave triggered by a mere failure to exercise it [40]. National courts must arrive, to the extent possible, at an interpretation of domestic law consistent with the Directive.

Failing all attempts at consistent interpretation, Mr Shimizu could not rely on the Directive alone, since “Max Planck had to be considered an individual” [65], and directives normally lack horizontal direct effect [68]. The Court thus turned to Article 31(2) of the Charter on the right to annual paid leave, noting that it entailed a clear, enforceable right, withstanding only derogations in compliance with Article 52(1) of the Charter [73]. Article 31(2) of the Charter needing no implementing act to operate, it could warrant disapplication of contrary domestic law:

74           The right to a period of paid annual leave, affirmed for every worker by Article 31(2) of the Charter, is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter.

75           Article 31(2) of the Charter therefore entails, in particular, as regards the situations falling within the scope thereof, that the national court must disapply national legislation negating the principle [that the right to paid leave and/or payment in lieu cannot lapse automatically].

The last hurdle for the direct invocability of Article 31(2) of the Charter in German courts was the dispute’s horizontal nature. The Court recycled from its own case-law the bold suggestion that Article 51(1) of the Charter, which sets out who is bound by the Charter, is ambiguous in this respect and does not preclude individuals from relying on the Charter against each other:

76           … although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union … and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.

Notably, the Court distinguishes Article 27 of the Charter on workers’ consultation (at issue in AMS) from Article 31(2) on annual leave, because the former Charter Article refers to national and EU law limits and the latter Charter Article does not. If this is the test for whether Charter provisions can have horizontal direct effect, it should be noted that most of the Charter provisions on social rights refer to national and EU limits – but most of the other provisions of the Charter do not.

73      By providing, in mandatory terms, that ‘every worker’ has ‘the right’ ‘to an annual period of paid leave’ — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2) — without referring in particular in that regard to the ‘cases’ and ‘conditions provided for by Union law and national laws and practices’, Article 31(2) of the Charter, reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave.

The Joined Cases C-596/16 and C-570/16 (Wuppertal v Bauer; Willmeroth v Broßonn) largely replicated the reasoning of the Max Planck and Kreuziger cases. Only, in the underlying disputes, it was rather the employees’ heirs seeking payment in lieu, on behalf of the deceased workers. According to the referring judge, German law provided that the right to unpaid annual leave, necessarily turned into payment in lieu upon the workers’ death, would not become part of their estates.

Building on prior case law (discussed here), the Court, besides noting the importance of the right under Article 7 of the Directive, stated that it should accrue, after the death, to the worker’s estate:

48      … from a financial perspective, the right to paid annual leave acquired by a worker is purely pecuniary in nature and, as such, is therefore intended to become part of the relevant person’s assets, as a result of which the latter’s death cannot retrospectively deprive his estate and, accordingly, those to whom it is to be transferred by way of inheritance, from the effective enjoyment of the financial aspect of the right to paid annual leave.

With respect to horizontal disputes (like the Willmeroth v Broßonn controversy, whereas Bauer was a public employee), the reasoning of the Court was identical to that used in the Max Planck case [87-91]. Article 31(2) of the Charter can be invoked in disputes between individuals, possibly leading to the setting aside of domestic norms like those at issue in the main proceedings.

The Charter’s effect on domestic measures

The Charter has many functions. It guides the interpretation of EU law and serves as standard of legality of EU acts. It does not enlarge the competences of the EU at the expense of the member states, but binds their action when they act as agents of the EU. In this residual scenario, delimited by the sibylline “implement[ation of] EU law” notion of Article 51(1) of the Charter, the Charter should serve as standard of EU-legality of national measures. In other words, the Charter can preclude some national measures.

The Charter applying to state measures falling “within the scope of EU law,” (a formula sanctified in Fransson [21], and unsurpassably frustrating), the following circumstances can arise:

a)      EU law does not apply to the matter, so neither does the Charter;
b)      EU law applies to the matter, and precludes the domestic measure. The Charter applies too: it might also preclude the domestic measure (“double preclusion”) or not;
c)       EU law applies to the domestic measure, but does not preclude it. The Charter applies too, and likewise does not preclude it;
d)      EU law applies to the domestic measure, without precluding it. The Charter, which also applies, precludes the domestic measure.

In the scenarios a), b) and c), the Charter is irrelevant to the ultimate determination of EU-legality.

Only in scenario d) does the Charter show its teeth, doing its standard of review job fully. Exclusively in this scenario, an otherwise EU law-compliant measure can breach the Charter and, accordingly, might be set aside by domestic judges. To this day, scenario d) has never occurred in its garden variety. Never has been the case that, for instance, a national measure that justifiably restricts one fundamental freedom (and falls therefore under the scope of Treaty law, without being precluded thereby) was found to breach the Charter. This unlikely coincidence warrants a deeper analysis (but not here), because it suggests that the Court is discreetly keeping the Charter in a locked drawer, lest member states react like the German Constitutional Court reacted after Fransson. A low-profile use of the Charter – one that essentially emptied it of its post-Lisbon potential – is what the Court’s record shows in the last 9 full years.

However, there is a hybrid category of cases, halfway between scenarios b) (double preclusion) and d) above. The paid annual leave rulings of 6 November 2018 belong in this atypical group, insofar as they relate to horizontal disputes. As far as their bearing on vertical disputes, they are squarely b)-type rulings: the measures are precluded by the Directive, and the breach of the Charter is just redundant.

The discussion below, instead, focuses only on the horizontal dimension of these rulings.

Did the Directive apply?

That the Directive applied must be assumed – otherwise the Charter would not have applied at all. Yet, the Directive could not apply to determine the outcome of the underlying dispute, for lack of horizontal direct effect. Can it be said that the Directive applied, and precluded the national measures, but was ineffective? The (ineffective) application of the Directive to the underlying scenario would then warrant the (very effective) application of the Charter. The Charter alone would warrant the disapplication of the German norms that breached both the ineffective Directive and the effective Charter.

The easier construction – that the Directive, lacking horizontal direct effect, could not apply – is untenable. Admitting that the Directive did not apply contradicts the notion that the German law fell within the “scope” of EU law, and would rule out the relevance of the Charter tout court. Some finer reasoning must support the Court’s decision. I suggest a couple of unnoticed distinctions that might help.

Direct application is not the same as direct effect: This is an all-time favourite for mid-term exams, so why not give this distinction a day in Court? Perhaps, the Directive did apply somehow (direct applicability), but could not be relied upon in domestic proceedings (lack of horizontal direct effect). This would explain the triggering of Article 51(1) of the Charter, but also the impossibility to use the Directive to solve the disputes between Mr Shimizu and Mrs Broßonn and their employers. Certainly the Directive applied, somehow. As soon as the transposition period expired, it deployed its legal obligatory effects and, even regarding horizontal disputes, triggered immediately Germany’s responsibility for failure to transpose correctly, which individuals can invoke to seek compensation without recourse to any implementing measure.

On the lack of direct effect, there is no real mystery: Article 7 of the Directive creates a precise and unconditional right, capable of invocation in domestic proceedings, so the direct effect checklist is in order. However, it can only work in vertical disputes. This distinction between direct applicability and direct effect could justify the Court’s truncated use of the Directive (sort-of applying to bring the Charter in under Article 51(1) of the Charter; not-really applying in its own right).

Scope of application is not the same as application: This is a contrived distinction, but it might operate in the background of these rulings. The Directive effectively cannot apply in domestic proceedings. However, the German law falls under the “scope” of the Directive, in a somewhat more abstract sense, as if applicable and applied were distinguishable. To accept that EU law reaches further than the circumstances to which it can actually apply is a head-scratcher. Yet, that is what the Court prescribed: domestic law must be set aside for intruding in an area that the Directive could not operate (the direct regulation of duties between private parties) but it nevertheless occupied – somehow. In the wake of Kücükdeveci (an earlier judgment on discrimination in employment), I noted the risk:

… it is necessary to evaluate the implications of Kücükdeveci: if the general principle of non-discrimination has a wider scope than the measures codifying it (the Directive), it follows that it can be invoked in a series of disputes that, despite concerning EU-regulated matters, fall outside the scope of the Directive.

Putting lipstick on Mangold

The distinctions above are nowhere mentioned in the rulings. So, if the Directive could not operate in domestic proceedings, how did the Court justify German law falling under the scope of EU law? This week’s rulings proffer only minimal reasons, but summon precedents to convey the idea that this apparent misalignment is nothing to worry about. From Bauer:

53           Since the national legislation at issue in the main proceedings is an implementation of Directive 2003/88, it follows that Article 31(2) of the Charter is intended to apply to the cases in the main proceedings (see, by analogy, judgment of 15 January 2014, Association de médiation sociale, C176/12, EU:C:2014:2, paragraph 43).

If one goes down the rabbit hole of cross-citations, however, Mangold awaits on the bottom. In terms of legal reasoning, it does not get any more controversial than Mangold. The judgment exasperated the former president of the German Constitutional Court and drafter of the Charter, who penned an op-ed wishing the Court of Justice to “Stop.” Ultimately, Mangold was criticised for encroaching into the Member States’ competence.

There are, in fact, a series of cases in which the Court prescribed the horizontal direct effect of a fundamental right, using a directive as a trampoline. Mangold was the first case, and Kücükdeveci followed. Dansk Industri (discussed here), also on discrimination on grounds of age, pulled the same trick, this time using the Charter rather than a general principle of law. AMS (discussed here) replicated the reasoning with respect to the workers’ right to consultation and information in the Charter, accepted its applicability but concluded that the Charter’s norm was not self-executing and stopped short of confirming its horizontal direct effect.

Egenberger (discussed here), very recently, asserted the horizontal effect of the right to non-discrimination on grounds of religion and the right of effective access to justice. In IR (discussed here), the Court consolidated Egenberger, and wisely recalled that non-discrimination is essentially a general principle: if the AMS explanation why the Charter applies to individuals were not compelling, the unwritten source might apply more liberally and come to the rescue just like in the good Mangold days:

69           Before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal status as the treaties, that principle derived from the common constitutional traditions of the Member States. The prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is therefore a mandatory general principle of EU law and is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law.


In all the cases mentioned, individuals could not rely on the directives in domestic proceedings. Yet, each directive somewhat marked the “scope” or “cover[age]” of EU law and let the fundamental right finish the work (unless some ingrained deficiency made it non self-executing, as in AMS). The simple annotation that the German law “is an implementation of [the] Directive” sanded over the uncomfortable truth: if the Directive was insufficient to set aside the norms of German law, perhaps these norms of German law lay outside the scope of EU law, and the Charter should not have found its way in the proceedings.

A sceptical reader might wonder what “a field covered by EU law” means, and wonder whether the Charter spilled over from the EU-law scope comfort zone. An optimist one can celebrate the expansive force of social rights. Horizontal application of fundamental rights translates into the creation of EU-based fundamental duties, and lets us catch a glimpse of solidarity in the making.

Barnard & Peers: chapter 9, chapter 20, chapter 6
Photo credit: PureTravel