The considerable contribution of British lawyers to EU (migration) law

 

Kees Groenendijk, Professor Emeritus, Radboud University Nijmegen, Netherlands.

The final sentence of press release 10/20 on the consequences of the UK’s withdrawal from the EU for the Court of Justice reads: “The Court of Justice pays tribute to the major contribution of all its former British members to European integration in general and to the case-law of the Court of Justice and the General Court in particular.” After all dramatic statements on the behaviour of British politicians during the 47 years the United Kingdom was a Member State of the EEC and the EU, it may be right to take a minute to consider the British contribution to EU law, and EU migration and free movement law in particular.

Together with their Irish colleagues, the five British judges and the five British advocates-general who were members of the Court since 1973 with their experience as practising common law lawyers unmistakably contributed to the gradual development of that Court, modelled in the 1957 Treaty of Rome after the French Conseil d’Etat, towards a more open and dynamic court. The President of the Court in his speech at the farewell ceremony for the last British judge praised the British members for their pragmatism, common sense and their inimitable sense of humour. He also recalled that the Court only after the arrival of the British and Irish judges started to cite previous case-law in its judgments “because such citations did not necessarily form part of the legal traditions of the six original Member States” – though without adopting a strict rule of stare decisis.

The British judges and advocates-general

Francis Jacobs, the longest serving advocate-general (1988-2006), in his conclusions frequently and ardently pleaded for the protection of human rights and of individual rights in Community law, even if his pleas were not always immediately accepted by the Court (Fordham I.L.J (29) 2005, p. 690-715). His handbooks contributed to Community law being taken serious in the UK and elsewhere inside and outside Europe – among others The European Convention on Human Rights (Oxford UP 1975), The Court of Justice of the European Communities (Sweet & Maxwell 1977) and The Sovereignty of Law: the European Way (Cambridge UP 2007).

The first British judge, John Mackenzie Stuart, born, advocate and judge in Scotland, served 16 years in Luxembourg. As President of the Court he stimulate the establishment of the General Court, to which part of the Court of Justice’s tasks were transferred. His successor, Gordon Slynn, previously served seven years as Advocate-General. Judge Slynn’s successor David Edward, the second Scottish judge, at the occasion of the farewell of his successor wrote an interesting and topical essay entitled “EU and the Separation of Member States” on separatist [secessionist?] movements in Catalonia, Scotland and Flanders (Fordham I.L.J. (36) 2012, p. 1-18).

The penultimate British judge, Konrad Schiemann, was born in 1937 in Berlin. He survived the RAF bombardments on that city. Shortly after the War he migrated as an orphan to family in London. His colleagues at the Court of Appeal at his appointment in the Court in 2004 asked him what for heaven’s sake he was going to do in Luxembourg. Possibly the thrust of his answer was given in a speech in 2012 under the title The EU as a Source of Inspiration: in 1957, the year the EEC-Treaty was signed and twelve years after the end of the Second World War, displaced persons were still living in camps. The last DP camp in Western Europe closed in 1959. Judge Schiemann was aware of the EU as a guarantee against the human misery and disruption of war.

Among lawyers on the continent the last British A-G, Eleanor Sharpston, is known for her original and lucid conclusions. Her conclusion in the Vethanayagam case (C-680/17) case clearly illustrated that the Court could have chosen for an interpretation of the clause on remedies in the Visa Code which would have supported the rights of many visa applicants and their effective remedy against a visa refusal rather than allow Member State to impede access to such remedy. The UK government proposed to continue Sharpston’s tenure during the transitional period after Brexit during which, there would no longer be a British judge in the Court of Justice, whilst it may still rule on references of UK courts on free movement rights of Union nationals in the UK on the basis of the Withdrawal Agreement. But Barnier, on behalf of the EU, was uncompromising [unyielding?]. After the appointment of a Greek successor on her chair by the 27 remaining Member States in September 2020, she started cases against the Council and the Member States before the General Court which within a few weeks ingloriously ended in her own Court, illustrating that divorce always hurts.

In his farewell address the last British judge, Christopher Vadja, son of a Hungarian (refugee?) father and a German mother, reminded that the UK soon after it joined the EU recognized the important role of the Court of Justice for the development of EU law. The judgment in Defrenne v. SABENA (C-43/75) where the Court held the clause on equal pay for men and women in the EEC-Treaty to be directly applicable, provided an early lesson. Between 1973 and 2016 (the year of the Brexit referendum) the UK intervened in 281 cases in support of one of the parties and presented observations in 718 preliminary references from other Member States, more than any other Member State. “This policy of active engagement with the Court was to the benefit not just of the UK, the Court and the development of European law generally but also of many generations of English barristers, including myself, who were instructed to represent the UK.” One could add that his UK tradition contrasts with the practice of other States entrusting only a limited group of government officials with the representation in Luxembourg, thus restricting the distribution of knowledge of Union law among their national bar.

Until the mid-1990s during the oral hearings the lawyers would read out their pleadings and then go home. The experience of the last British judge in the General Court: “I recollect sad hearings from the old times in Luxembourg when days of preparation and hours of pleadings elicited not a single question.” (….) “[UK] judges are accustomed to test propositions verbally by asking provocative questions.” The British members stimulated their colleagues to put question to the parties. That tradition did not end with the departure of the UK: see a report on the Grand Chamber hearing on 12 October 2020 in the reference by a Dutch court on the independence of Polish courts and the European Arrest Warrant (C-354/20 PPU and C-412/20 PPU).

Judge Vadja also pointed to the limited public access to the hearings of the Court the hearing of the Wightman case on the question whether a Member State had the right to unilaterally revoke its Article 50 notification to withdraw from the EU a maximum of 300 persons could be present in the Grand Salle in Luxembourg. He contrasted this with the 300,000 persons who viewed the first day of the proceedings before the UK Supreme Court on that court’s live stream of the first Miller case on the equally important question whether the Article 50 notification required parliamentary approval and the more than 12 million views of the hearing before the UK Supreme Court of the second Miller case on the prorogation of the UK Parliament. Implicitly, he stressed the importance of the adage ‘Justice should be seen to be done’. Judge Vadja concluded his comparison with: “For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”

Common law principles, common history and current practice in Luxembourg

The President of the General Court in his address to his departing British colleague Ian Forrester stressed the important contribution of the common lawyers in the court in emphasising  the need for due process and procedural fairness. In his words: “Due process should prevail, even in terrorist cases. As Ian told us repeatedly, due process not only serves the cause of the defendant, but also the interest of the administration, for the very simple reason that procedural safeguards lead to better decision making. (…)  [T]he common law tradition adds a specific procedural dimension to the concept of fairness: the executive is a party before the judge as any other party. There is no reason why public authorities should, as a rule, benefit from privileged procedural positions, either as an appellant or as a defendant. This also applies when it comes to issues like access to evidence used in court proceedings.”

Judge Forrester, also from Scotland, started his farewell address with a short history lesson in French:

“Je vais vous parler de l’histoire, du droit européen, et de notre cour.  Mon père est né en 1899 et a fait l’entrainement d’un officier d’artillerie mais n’a jamais été déployé en France.  Un oncle a servi en Gallipoli.  Un cousin est mort en Birmanie. Une histoire familiale assez typique.  Nous avons tous rencontré ceux aujourd’hui fort âgés qui ont des témoignages étonnants de guerre et de conflit.  Deux juges de la Cour de Justice ont constaté qu’ils s’opposaient lors de la même bataille en Italie pendant notre dernière guerre civile européenne.  L’ancêtre d’un autre juge était soldat dans la bataille de Waterloo.  Un collègue me disait juste après le référendum en 2016 que ses deux grands-pères étaient soldats sur les deux côtés lors de la Bataille de la Somme.  Robert Schumann, fondateur, est né en Alsace-Lorraine, soldat allemand pendant la première guerre, français pendant la deuxième. Les guerres ont marqué notre continent.”

Judge Vadja used the occasion of his departure to give outsiders a look in the kitchen in Luxembourg. In an extensive interview he gave an insight in the work of a judge and the processing of cases inside the Court of Justice from the distribution of cases till the drafting of a judgment, including useful advice for lawyers pleading before the Court.

The amicus curiae and the independence of Polish judges

Less than two months after Brexit, the Court of Justice was confronted with the typical Anglo-Saxon legal concept of the amicus curiae, the expert outsider who upon request of the judge or on his own initiative provides the judge with relevant information for making her decision. In the ECtHR, which from its inception had more common law influence, the amicus curiae has a considerable history, codified in rules on third party intervention in Article 36(2) ECHR and Article 44(3) of the ECtHR Rules of Procedure. UNHCR, Amnesty International and Human Rights Watch, among others, regularly act as amicus curiae in proceedings in Strasbourg.

In the closed system of participants in proceedings before the Court of Justice the amicus curiae until recently was unknown. Its absence forces UNHCR to publish its observations on questions of interpretation of EU asylum instruments pending before the Court of Justice in notices distributed on the internet and in that way reaching the Court – or alternatively, produced as an annex to the observations of the lawyer of the asylum seeker (see fn 13 of the AG’s conclusion in Diakité, C-285/19).

The Grand Chamber of the Court in its judgment of 26 March 2020 in two joined references by Polish courts on the serious threats to the independence of judges in Poland, summarizes the main points of three letters of the Polish Ombudsman to the Court. The Ombudsman, who was not a party in those cases, in his letters pointed among others to the recent Muzzle Law, which considerably strengthens the new disciplinary regime for judges. That law was introduced with the aim to nullify the effet of the AK and others judgment of the Court of 19 November 2019 on the lack of independence of  new disciplinary chamber (“Chamber of Extraordinary Control and Public Affairs”) of the Polish Supreme Court. The Ombudsman referred to  the A-G’s conclusion that the Court did not have sufficient factual and legal material to enable it to rule on those requests. He described the growing number of disciplinary proceedings and administrative measures and the adoption of disciplinary measures against judges. Further, the Ombudsman informed the Court of Justice that the Polish National Prosecutor recently brought an action before the disciplinary chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in one of the joined cases.

The Court of Justice noted that its Statute and Rules of Procedure do not provide for the interested parties referred to in Article 23 of the Statute to submit observations in response to the A-G’s Opinion. But it also observed that the Court “may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.” The Court concluded that in this case it had sufficient information and that the new facts relied on by the Ombudsman “are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give” (paras 27-30 of the judgment). The Court held the two references inadmissible because interpretation of the EU law provisions concerned was not necessary for deciding the disputes in the main procedures. After reaching that conclusion, however, the Court extensively reasoned that not being exposed to disciplinary proceedings or measures for bringing a matter before the Court, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to judicial independence (paras 54-59 of the judgment).

Even, if the information provided by the Ombudsman did not have “decisive influence” on the outcome of the case, apparently, the Court considered that information to be relevant. The reference to Article 83 of the Rules of Procedure may well be the first step in the direction of the amicus curiae in Luxembourg. A month later, in April 2020, the Court of Justice ordered Poland to suspend pending disciplinary cases and stop bringing new case before the disciplinary chamber (C-791/19). That order was ignored by the Polish authorities and the disciplinary chamber.

Tenacious negotiators

At the Hohenheimer Tage zum Migrationsrecht, the annual meeting of German immigration, I often heard German friends complain about the tenacious  UK lawyers in the Council Working Groups during the negotiations on free movement, social rights or some of the asylum instruments. My standard reply was that the UK negotiators may be persistent, but once an EU instrument is adopted, the UK, generally, applied it far better than the Member State who simply copy past the instrument in their national law and leave every else unchanged in practice.

A sad example of this persistent negotiating is the reduction of the protection against expulsion of Union citizens on public order grounds. In 2004 the Council unanimously agreed to reinforce that protection in the Articles 27 and 28 of Directive 2004/38, adopted on the day before the accession of ten new Member States to the Union. Since 2008, the UK repeatedly pleaded in the EU Council of Ministers to give Member States more room for expulsion after a criminal conviction. Sometimes other West-European Member States joined this British plea (see Council document 15903/08 of 8 November 2008 and Council document 10313/13 of 31 May 2013). Each time such proposals met with opposition from the Commission and got insufficient support in the Council.

In the 2016 pre-Brexit-referendum-deal between PM Cameron and the European Council (discussed here), that Council agreed and the Commission promised to propose a considerable ‘softening’ of the public order clauses in Directive 2004/38, in case the UK remained in the EU. Finally, the UK achieved its aim during the Brexit negotiations. For EU nationals in the UK and for British nationals in the EU with residence rights under the EU-UK Withdrawal Agreement the protection against expulsion on public other grounds will be reduced to the level of the national legislation for conduct occurred after 2020 (Article 20 of the withdrawal agreement: see discussion here). This full renationalisation clearly limits the acquired rights of the millions of Union citizens who used their free movement rights to and from the UK before 2021. 

British courts, lawyers and legal academics

The references by British courts made an important contribution to the development of the rules on free movement of Union citizens. A quarter of all CJEU judgments in that field in 2008-2019 were given in answer to preliminary references by British judges. Especially, their questions concerning the right of permanent residence provide for in Directive 2004/38 (Dias, Alarape, Onuekwere and Lounes, discussed here) and on the admission of durable but unregistered partners of Union citizens (Rahman, Banger and S.M., discussed here) have produced some clarity and focus attention in several Member States on their rights. A bill implementing the last three judgments is currently pending in the German Bundestag. Almost half of the judgments of the Court of Justice concerning the rights of third-country national family members of EU citizens were given in answer to questions from British courts (V. Passalacqua, Legal mobilisation and the construction of EU migration law, Florence 2020, diss EUI, p. 8).  

Many of those questions originated in the minds of active UK lawyers, supported by their Immigration Law Practitioners’ Association (ILPA). Their activities also resulted in the provision on self-employed Turkish citizens in the EEC-Turkey association law were taken seriously (in Savas, Tum & Dari and Tural Oguz) by the Court and, subsequently in Member States. The AIRE Centre (Advice on Individual Rights in Europa) demonstrated how an NGO can stimulate test cases in Luxembourg. Since 1993, this London based organisation provided legal assistance and acted as party, intervenor or amicus curiae in more than hundred cases on human rights or migration before both European courts (for instance, the AIRE Centre acted as amicus curiae in the case on the border gate around Melilla, which resulted in ECtHR 13 February 2020, app. 8675/15 (N.D. and N.T. v. Spain), see point 100 and 160-163), and among those are ten cases before the Court of Justice on free movement or on Dublin since 2010.

Leading handbooks on EU migration law or on the EU Charter of Fundamental Rights written or edited by UK academics such as Cathryn Costello, Elspeth Guild and Steve Peers, will be gratefully used by lawyers and judges in the EU long after Brexit. The influence of almost five decades of membership of the same legal order cannot be brushed away, however gladly some politician would desire.

The greater the scope of the level playing field agreed in the future agreements between the EU and the UK, the greater the chance that EU law will remain a voluntary or compulsory subject at British law faculties, if only because people, businesses and institutions in the UK will continue to have to deal EU law rules. It will be for the lawyers in the remaining Member States to honour and profit from the contributions of their British colleagues, until the time is right for a new rapprochement.

Photo credit: Unlock

Action for damages in relation to CFSP decisions pertaining to restrictive measures: A revolutionary move by the Court of Justice in Bank Refah Kargaran?

 

Professor Dr. Peter Van Elsuwege and Joyce De Coninck (PhD Researcher), Ghent European Law Institute

The Grand Chamber judgment in Bank Refah Kargaran v Council, delivered on 6 October 2020, unveiled yet another piece of the puzzle of the  jurisdiction of the Court of Justice of the European Union (CJEU) in relation to the EU’s Common Foreign and Security Policy (CFSP). Building upon the logic which was developed in previous judgments such as Elitaliana, H v. Council (discussed here and here), Rosneft (discussed here) and SatCen vs. KF, the Court of Justice has now concluded that the EU courts  have jurisdiction to hear and determine an action for damages for the harm allegedly caused by the adoption of CFSP decisions under Article 29 TEU. Accordingly, it revokes the approach of the General Court which had so far rejected this option in view of the CJEU’s limited jurisdiction in matters concerning CFSP. Whether the judgment in Bank Refah Kargaran has further implications beyond the specific situation of restrictive measures remains to be seen. In any event, it confirms once again that the role of the CJEU in the field of CFSP is not as limited as a cursory reading of the Treaties might suggest (see also G. Butler).

 

Background to the Grand Chamber Ruling

Restrictive measures are effectuated by the adoption of Council Decisions on the basis of Article 29 TEU. To ensure that such CFSP Council Decisions are applied in a uniform manner, the Council typically adopts additional regulations in parallel with said decisions upon the basis of Article 215 TFEU, which generally replicate the content of the underlying Council Decision. The CJEU has repeatedly held that as concerns the content of regulations founded upon Article 215 TFEU, it retains jurisdiction, including in actions for damages. Whether such actions for damages are possible against the underlying CFSP Council Decision concerning the restrictive measures, remained up in the air until now.

In this case Bank Refah Kargaran had already successfully obtained the annulment of restrictive measures against it, taken on the basis of Council Decisions 2010/664 and 2011/783, as well as the subsequent Council Regulations 961/2010 and 1245/2011, for failure to state reasons (judgment in Case T-24/11; note that the Bank was then subjected to sanctions on the basis  of a new decision, and its legal challenge to that later decision was unsuccessful). Having obtained the annulment of said decisions and regulations, Bank Refah Kargaran initiated an action for damages before the General Court, for the damages incurred by both the underlying Council Decisions, as well as Council Regulations 961/2010 and 1245/2011, without distinction between the measures or the legal basis upon which they are founded.

In its judgment, the General Court noted that this distinction between the Council Decisions adopted on the basis of a CFSP legal basis, and the Council Regulations 961/2010 and 1245/2011, adopted upon the basis of Article 215 TFEU , had not been raised. With this distinction in mind, the General Court held that it did not have jurisdiction to rule on an action for damages concerning the aforementioned Council Decisions. In so doing, it recalled that it enjoys only limited jurisdiction in the realm of CFSP measures, namely where the Court is called upon to monitor compliance with Article 40 TEU (on the ‘boundary’ between the CFSP and other areas of EU law) and secondly, concerning the legality of measures which provide for restrictive measures in accordance with Article 275(2) TFEU. As this latter provision does not (explicitly) provide jurisdiction for an action for damages against restrictive measures, the General Court concluded that the action brought for damages against the Council Decisions escapes its jurisdiction. However, concerning Council Regulations 961/2010 and 1245/2011, the General Court held that it retained jurisdiction, as these measures were adopted upon the basis of Article 215 TFEU. The General Court subsequently embarked on an assessment of the conditions for a successful claim for damages, underlining the cumulative nature thereof, to ultimately conclude that these conditions had not been met.

The CJEU’s Grand Chamber ruling concerns the appeal against the aforementioned case before the General Court, and sparked much interest as it presented the CJEU with the opportunity to elaborate on the contours and limitations of its jurisdiction in CFSP measures and more specifically, whether Article 275(2) TFEU is to be read teleologically – in line with its Rosneft ruling – or rather, textually and in line with the opinions presented by AG Wahl in H v Council, and AG Kokott in Opinion 2/13.

 

Opinion of AG Hogan: advocating a ‘holistic and harmonious’ interpretation of the Treaties

AG Hogan’s opinion unpacks the CJEU’s case law on the jurisdiction on CFSP related matters, with as a departing point, the general jurisdiction of the CJEU in Article 19 TEU and the exceptional and limited nature of jurisdiction in CFSP on account of Article 24 TEU and Article 275(1) TFEU. AG Hogan proffers that the raison d’être for this limited jurisdiction is that the drafters of the Treaties acknowledged that decisions of a purely political nature should be exempted from judicial scrutiny (§47). He underlines however, that this is not the case for all matters of foreign policy – solely for questions of “high-level politics and diplomacy, which by their very nature are inapt for judicial resolution”.

In line with this finding, A.G Hogan identifies three factors to be taken into account when assessing whether the CJEU retains jurisdiction in matters of foreign policy. Firstly, AG Hogan notes that only acts adopted on the basis of Articles 23 – 46 TEU are shielded from judicial scrutiny. Secondly, certain acts on account of their nature will not be shielded from judicial scrutiny (such as staff management for example – see H v. Council). Thirdly, the exclusion from jurisdiction in Article 24 TEU and Article 275(1) TFEU constitute an exception to the more general rule of jurisdiction in Article 19 TEU, and accordingly must be interpreted narrowly.

Against this background, AG Hogan arrives at the most contentious point of the case, the treaty-based “claw-back” exceptions to the limited jurisdiction of the CJEU embedded in Article 40 TEU and Article 275(2) TFEU. Article 275(2) TFEU grants the CJEU jurisdiction to assess the legality of restrictive measures adopted under the CFSP-framework “…in accordance with the conditions laid down in the fourth paragraph of Article 263 [TFEU]”, thus linking the limited CFSP jurisdiction to the legality review inherent to the annulment proceedings. Two different approaches can be distinguished in this respect: while it may be argued that the reference to annulment proceedings must be read strictly and implies that the CJEU is granted jurisdiction to assess only the legality of restrictive measures in the context of the annulment procedure, this provision may also be read teleologically.

Following this latter perspective, the reference to Article 263(4) TFEU in Article 275 TFEU is nothing more than a reference to the “…types of decisions which may be subject to judicial review by the EU judicature and not to a particular procedure of judicial review” (§ 69). The infamous Rosneft judgment drawing from Article 19 TEU along with Article 47 of the EU Charter of Fundamental Rights, follows this second strand of opinion, holding that Article 275(2) TFEU cannot be read in such a restrictive manner that the reference to Article 263 TFEU would rule out interpretative indirect jurisdiction of the CJEU via the means of a preliminary reference procedure.

AG Hogan concludes that excluding an action for damages against successfully annulled CFSP-decisions on restrictive measures, is nonsensical, as decisions taken on the basis of Article 215 TFEU are - for all intents and purpose no more than a reproduction of the original CFSP-based restrictive measures. Any other reading of Article 275(2) TFEU – according to AG Hogan – would result in indefensible anomalies, as well as impair the effectiveness and coherence of the judicial remedies established in the Treaties. On jurisdiction, the AG concludes that the  Treaties  must be read in a “holistic and harmonious manner” and that it was never the intention of the drafters of the Treaties to exclude an action for damages (closely related to an action for annulment) against CFSP-adopted restrictive measures.

 

The Court judgment: confirming the unity of the EU legal order based on respect for the rule of law

The CJEU tackles the issue headfirst, and while acknowledging that Article 275(2) TFEU does not explicitly endow the Court with jurisdiction to rule on an action for damages against CFSP-based restrictive measures, lays out the groundwork as to why this jurisdiction is nevertheless implied. True to its approach in Rosneft, the CJEU first recalls that the limited jurisdiction in CFSP matters constitutes an exception to its general jurisdiction under Article 19 TEU and must, therefore, be interpreted narrowly. Second, the CJEU recalls that while an action for damages is conceptually distinct from legality review, it remains an integral component of the EU system of legal remedies, as well as the right to an effective remedy. Finally, the CJEU recalls the rule of law upon which the Union is founded, as well as the right to an effective remedy enshrined in Article 47 CFR, which require that affected parties have access to effective judicial protection. Applying these observations, the Court agrees explicitly with AG Hogan, in concluding that the coherence and effectiveness of the Union system of remedies, as well as the need to avoid legal lacuna in this system of remedies, requires that Article 275(2) TFEU is to be read as providing jurisdiction to rule on an action for damages against an annulled CFSP-adopted restrictive measure.

Significantly, the Court also expressly rejects the arguments put forward by the Council on the basis of the pre-Lisbon judgments of Segi and Gestorias Pro Amnestia. The introduction of a single legal personality for the EU, laid down in Article 47 TEU, implies that the CFSP is no longer to be regarded as a separate pillar but as an integral part of the EU legal order. The logical consequence is that the EU Treaty provisions relating to the CFSP – including the part on the limits to the Court’s jurisdiction –  cannot be interpreted in isolation from the general structure and logic of the Treaties. The Grand Chamber judgment in Bank Refah Kargaran confirms this approach, which was already present in previous judgments, most notably in Rosneft, to conclude that the General Court erred in law when it excluded its jurisdiction to hear and determine an action for damages in relation to CFSP decisions imposing restrictive measures.

Finally, with respect to the substance of the action, the Court of Justice dismissed the appeal of Bank Refah Kargaran. As correctly observed by the General Court, the inadequacy of the statement of reasons for the annulled legal acts imposing restrictive measures does not in itself provide a ground for triggering the non-contractual liability of the EU. The obligation to state reasons is merely an essential procedural requirement, which must be distinguished from the question whether the reasons are well founded. Hence, the EU may only be found liable when the substantive legality of the measure is at stake.  

 

Understanding the intention of the drafters of the Treaty

Taking into account the fundamental importance of the rule of law as a cornerstone of the EU legal order, the Court’s deliberate choice for a broad interpretation of its general jurisdiction does not come as a surprise. It builds upon the tradition of Les Verts to ensure, in so far as possible, an effective system of judicial protection in a Union which is based on respect for the rule of law. In its post-Lisbon case law, the CJEU consistently applied the same logic with respect to questions concerning the scope of its jurisdiction in the area of CFSP. Of course, the question remains how far this approach can be stretched, taking into account the limitations imposed under Article 24 TEU. As observed by AG Wahl in H v. Council, the system of judicial review in relation to the CFSP is “the result of a conscious choice made by the drafters of the Treaties”, implying that the Court may not broaden its jurisdiction beyond the limits laid down in the Treaties.

In other words, the entire discussion about the precise limitations to the jurisdiction of the CJEU relates to the intention of the drafters of the Treaties. Did they intend to retain an separate constitutional status for the CFSP, which is shielded from judicial review by the EU courts with certain exceptions as defined in Article 24 (1) TEU and 275 (2) TFEU, or did they essentially aim to exclude CJEU jurisdiction in view of the highly political nature of CFSP decisions? The latter approach largely corresponds with the established practice at the national level of EU Member States where foreign policy decisions traditionally escape judicial review. This is the view defended by AG Hogan in his opinion to the Bank Refah Kargaran judgment when he points at the intention to exclude CJEU jurisdiction for CFSP decisions that are in essence of a purely political nature without excluding particular types of foreign policy decisions that can be the subject of judicial review. A largely similar approach was previously developed by AG Bobek in SatCen v. KF when he observed that “the fact that an act is formally based on CFSP provisions or adopted in that context simply is not enough to trigger the CFSP derogation. The act must also have genuine CFSP content.”(§79).

The Court judgment in Bank Refah Kargaran again confirms that not the form of a measure is decisive to determine its jurisdiction. As observed by AG Hogan and expressly upheld by the Court (§39), such a formalistic approach would lead to indefensible anomalies in a Union based on the rule of law. The case at stake concerned the specific situation of CFSP decisions pertaining to restrictive measures. For such acts, an action for damages is possible with respect to measures adopted under Article 215 TFEU and it would be rather artificial if this option would then be precluded with respect to the underlying CFSP decision based on Article 29 TEU.

Unresolved Issues

Although the current case constitutes a significant clarification in an increasingly momentous strand of case law on CJEU jurisdiction in CFSP, a number of questions remain unresolved in this jurisdictional enigma, and not in the least the larger implications of the current judgment. While on the one hand, it could be argued that by building upon the reasoning adopted in Rosneft and the underlying principles of the rule of law and the right to an effective remedy, the Court has opened the door to significantly more jurisdiction in the realm of CFSP, it could also be argued on the other hand, that the implications of the current judgment are in fact, relatively limited.

The case at hand concerned restrictive measures that had already been the subject of a successful annulment proceeding as concerns both the Article 215 TFEU-based regulations, as well as the underlying Council Decisions to include Bank Refah Kargaran on the EU’s list of restrictive measures. However, for the right to an effective remedy under Article 47 CFR to be discharged, the mere declaratory nature of an annulment proceeding will not suffice, and additional remedial action is needed. Within this line of reasoning, it is not surprising that the CJEU found that an action for damages for an already annulled CFSP-based restrictive measure is inherent to the system of remedies encapsulated in Article 275(2) TFEU. In other words, as Article 275(2) TFEU already embodies one aspect of the right to an effective remedy, it is not surprising that the CJEU confirmed in casu that this legality review for CFSP-based restrictive measures includes also the complementary right to damages as a result of the unlawfulness of the measures. Following this reasoning, the impact of the ruling on CJEU jurisdiction in CFSP can be construed as limited exclusively to matters concerning restrictive measures that in any event, were already subject to legality review by the Court.

However, by increasingly building its reasoning in the present case and in its predecessors such as Rosneft, on the overarching and foundational value of the rule of law, as well as the coherence and effectiveness of the system of remedies in the Union, the question remains whether the Court’s judgment may have broader implications, going beyond the specific situation of CFSP decisions concerning restrictive measures. In particular, if the intention of the drafters of the Treaty was to solely exclude CFSP decisions of a political nature, it implies that such decisions that are not of a political nature, would thus fall within the purview of CJEU jurisdiction.

The reference to the overarching right to an effective remedy in the EU legal order, including the right to damages where the conditionality has been met, could arguably be invoked within the context of EU Common Security and Defence Policy (CSDP) military missions for purported human rights violations occurring in the context thereof. In fact, the increased reference to such overarching principles inherent to the rule of law, make it increasingly difficult to contend that the CSDP nature of the mission in itself prevents any judicial scrutiny by the CJEU. Given the increased appropriation of jurisdiction in CFSP-matters of a cross-policy nature (the Mauritius case concerning criminal cooperation, discussed here; the Elitaliana case concerning the Financial Regulation, H. v. Council and SatCen v. KF concerning staff management), as well as the increasingly established jurisdiction in differing procedures on restrictive measures (the Rosneft case and now Bank Refah Kargaran) it appears that the CJEU is taking definitive steps in determining the contours of its jurisdiction in CFSP. In turn, this evolution in the case law of the Court could prove to be instrumental in the currently recommenced negotiations on the accession of the EU to the European Convention on Human Rights (ECHR), in which (the absence of CJEU) jurisdiction in CFSP had proven to be a significant obstacle. Whereas the Court held in Opinion 2/13 (discussed here) that it did not yet had the opportunity to define the exact scope to which its jurisdiction is limited in CFSP matters (§251), the increasingly long list of recent judgments reveals that its role is less limited than what a literal interpretation of Article 24 TEU may suggest.

 

Concluding remarks

The Court judgment in Bank Refah Kargaran v Council is another important contribution to the ongoing discussion about the precise scope of CJEU jurisdiction in relation to the area of CFSP. It makes an end to the existing practice of the General Court to reject the option of an action for damages in relation to restrictive measures adopted on the basis of Article 29 TEU. In combination with previous judgments, most notably Rosneft, it implies that the entire system of EU legal remedies is now available with respect to the adoption of restrictive measures against natural or legal persons, meaning that, for this issue, there is no difference in comparison to other areas of EU law.

Whereas the case at stake is confined to the specific situation of restrictive measures, the Court’s reasoning on the basis of the integration of the CFSP in the post-Lisbon EU legal order – and its concomitant application of the general principles of EU law – has to be put in the broader perspective of EU constitutional law. Once again, the Court stressed the fundamental importance of respect for the rule of law and its concomitant right to an effective judicial remedy in order to allow for a broad interpretation of its own jurisdiction. Whereas the precise limitations with respect to matters adopted in the field of CFSP are still not entirely defined, the judgment in Bank Refah Kargaran thus forms part of a broader tendency in the Court’s post-Lisbon case law to ensure as much as possible that non-political questions adopted in the field of CFSP are subject to judicial review.

Barnard & Peers: chapter 24

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When is mass surveillance justified? The CJEU clarifies the law in Privacy International and other cases

 

 

 

Lorna Woods, Professor of Internet Law, University of Essex

 

Background

 

This case concerns the collection of bulk communications data (BCD) from network operators by the security and intelligence agencies (SIAs).  It formed part of an action brought by Privacy International challenging the SIAs’ acquisition, use, retention, disclosure, storage and deletion of bulk personal datasets (BPDs) and BCD which started in 2015 before the Investigatory Powers Tribunal (IPT).  Privacy International’s claim is based on its understanding of the safeguards required by the Court of Justice in Tele2/Watson – a 2016 CJEU judgment on UK data retention law, discussed here.

 

In Tele2/Watson the Court of Justice held that any data retention obligation must be targeted and limited to what is strictly necessary in terms of the persons affected, the sorts of data retained and the length of retention.  It also suggested that access to retained data should be subject to prior review by an independent body and that parties affected should be informed of the processing (unless this would compromise the investigations); and that the data should be retained within the EU.  The authorities must take steps to protect against misuse of data and any unlawful access to them.  Privacy International argued that the safeguards provided by British law are insufficient. The British government claimed that the SIAs’ activities fell outside the scope of EU law and that the rules were compliant with Article 8 ECHR. It argued that providing the safeguards as required by Tele2/Watson would undermine the ability of the SIAs.  The IPT referred two questions – but only in relation to BCD not BPD - to the Court of Justice.  This was the basis for the Court’s judgment handed down yesterday.

 

Questions in Issue

 

The two questions referred were:

 

-          whether the activities of the SIAs fall within the scope of EU law bearing in mind Art 4 TEU and Art 1(3) of Directive 2002/58 (ePrivacy Directive);

-          if the answer is that the situation falls within EU law, do any of the “Watson Requirements” (as above) (or any other requirements) apply?

 

The Court of Justice decided to deal with this case with two other cases that had been referred to it: Joined cases C-511/18 and C-512/18 La Quadrature du Net & Ors and Case C-520/18 Ordre des barreaux francophones et germanphone & Ors, which were also the subject of a separate judgment yesterday. The cases also dealt with the bulk collection of communications data but in addition the court in La Quadrature du Net also asked whether real-time measures for the collection of the traffic and location data of specified individuals, which, whilst affecting the rights and obligations of the providers of an electronic communications service, do not however require them to comply with a specific obligation to retain their data are permissible. It also asked whether the Charter required persons concerned by surveillance to be informed once such information is no longer liable to jeopardise the investigations being undertaken by the competent authorities, or may other existing procedural guarantees which ensure that there is a right to a remedy suffice?   Ordre des barreaux francophones et germanphone & Ors raised the question of whether a general obligation might be justified to identify perpetrators of secual abuse of minors. If national law has not usfficiently guaranteed human rights may the effects of that law be temporarily retained in the interests of certainty and to achieve the objectives set down in the law.

 

The Advocate General handed down separate opinions on each of the cases (see here, here and here) but all on the same day (15 January 2020) to similar effect, that:

 

-          the e-privacy directive (and EU law in general) applies in this situation because of the required co-operation of private parties;

-          limitations on the obligation to guarantee the confidentiality of communications must be interpreted narrowly and with regard to the rights in the EU Charter on Fundamental Rights;

-          the case law in Tele2/Watson (summarised above) should be upheld: general and indiscriminate retention of traffic and location data of all subscribers is an interference with the fundamental rights enshrined in the Charter but real-time collection of traffic and location data of individuals suspected of being connected to a specific terrorist threat could be permissible provided it down not impose a requirement on communications service providers to retain additional data beyond that which is required for billing/marketing purposes; and that the use of such data for purposes less serious than the fight against terrorism and serious crime was incompatible with EU law.

 

Note that there are two more cases pending Case C-746/18 H.K. v Prokurator (Opinion handed down by AG Pitruzzella 21 Jan 2020) as well as references from Germany from 2019 and Ireland from 2020. 

 

Summary of Judgment

 

Privacy International

 

In its Grand Chamber judgment, the Court confirmed that requirements on communications service providers to retain data fell within the scope of EU law and specifically the e-Privacy Directive. The Court argued that the exclusion in Article 1(3) e-Privacy Directive related to “activities of the State or of State authorities and are unrelated to fields in which individuals are active” (para 35, citing Case C-207/16 Ministerio Fiscal, discussed here, para 32), whereas Art 3 makes clear that it regulates the activities of communications service providers. As held in Ministerio Fiscal, the scope of that directive extends not only to a legislative measure that requires providers of electronic communications services to retain traffic data and location data, but also to a legislative measure requiring them to grant the competent national authorities access to that data.

 

The legislative measures, permissible as a derogation under Article 15, “necessarily involve the processing, by those providers, of the data and cannot, to the extent that they regulate the activities of those providers, be regarded as activities characteristic of States” (para 39). given the breadth of the meaning of ‘processing’ under the GDPR, the directions made under s 94 Telecommunications Act fall within the scope of the ePrivacy Directive. The Court re-affirmed (para 43) the approach of its Advocate General in this case (and in La Quadrature du Net) that ‘activities’ in the sense of Art 1(3) cannot be interpreted as covering legislative measures under the derogation provision; to hold otherwise would deprive article 15 of any effect (following reasoning in Tele2/Watson) and Article 4(2) TEU does not disturb that conclusion (despite the Court’s reasoning in the first PNR case (Cases C-317/04 and C-318/04, paras 56 to 59).  For the e-Privacy Directive (by contrast to the former Data Protection Directive in issue in the PNR case), what is important is who does the processing; it is the communications providers. The Court took the opportunity to confirm that the GDPR should not be interpreted the same way as the Data Protection Directive but in parallel with the e-Privacy Directive.

 

As regards the second question, the Court re-stated the scope of s. 94 orders thus (paras 51-52):

 

That data includes traffic data and location data, as well as information relating to the services used, pursuant to section 21(4) and (6) of the RIPA. That provision covers, inter alia, the data necessary to (i) identify the source and destination of a communication, (ii) determine the date, time, length and type of communication, (iii) identify the hardware used, and (iv) locate the terminal equipment and the communications. That data includes, inter alia, the name and address of the user, the telephone number of the person making the call and the number called by that person, the IP addresses of the source and addressee of the communication and the addresses of the websites visited.

 

Such a disclosure of data by transmission concerns all users of means of electronic communication, without its being specified whether that transmission must take place in real-time or subsequently. Once transmitted, that data is, according to the information set out in the request for a preliminary ruling, retained by the security and intelligence agencies and remains available to those agencies for the purposes of their activities, as with the other databases maintained by those agencies. In particular, the data thus acquired, which is subject to bulk automated processing and analysis, may be cross-checked with other databases containing different categories of bulk personal data or be disclosed outside those agencies and to third countries. Lastly, those operations do not require prior authorisation from a court or independent administrative authority and do not involve notifying the persons concerned in any way.

 

The Court stated that the purpose of the e-Privacy Directive was to protect users from threats to their privacy arising from new technologies. It ‘gave concrete expression to the rights enshrined in Articles 7 and 8 of the Charter’ (para 57) and the exceptions thereto under Article 15(1), ie necessary, appropriate and proportionate in the interests of purposes listed in Art 15(1): national security, defence and public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system. The exceptions cannot permit this exception to become the rule (citing Tele2/Watson, but also the ruling in La Quadrature du Net). Restrictions must also comply with the Charter. This is the same whether the legislation requires retention of the transmission of data to third parties (citing EU-Canada PNR Agreement, discussed here, paras 122-123). Drawing on Schrems II, discussed here, the Court held:

 

“any limitation on the exercise of fundamental rights must be provided for by law implies that the legal basis which permits the interference with those rights must itself define the scope of the limitation on the exercise of the right concerned ” (para 65).

 

It also re-iterated that derogations from the protection of personal data any restriction on  confidentiality of communications and traffic data may apply only in so far as is strictly necessary and “by properly balancing the objective of general interest against the rights at issue’ (para 67). Proportionality also requires the legislation to lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, to protect effectively against the risk of abuse. The legislation must set down conditions for the application of the measures so as to restrict them to those ‘strictly necessary’; the legislation must be binding. Automated processing gives rise to greater risks. These considerations are the more pressing in the context of sensitive data.

 

The Court noted that the transmission of data to SIAs constituted a breach of confidentiality in a general and indiscriminate way and thus

 

has the effect of making the exception to the obligation of principle to ensure the confidentiality of data the rule, whereas the system established by Directive 2002/58 requires that that exception remain an exception (para 69).

it also constitutes an interference with Articles 7 and 8 of the Charter, no matter how the data are subsequently used. Re-iterating its approach in EU-Canada PNR Opinion, the Court stated that

 

it does not matter whether the information in question relating to persons’ private lives is sensitive or whether the persons concerned have been inconvenienced in any way on account of that interference (para 70).

 

Here, given the potential to create a personal profile of individuals the intrusions was particularly serious and “no less sensitive than the actual content of communications” (para 71). The court also emphasised the impact of the feeling of being under constant surveillance, following its reasoning in Digital Rights Ireland (discussed here) and Tele2/Watson. Such surveillance may have an impact on freedom of expression, especially where users are subject to professional secrecy rules or are whistleblowers. The Court also note that given the quantity of data in issue, their “mere retention” entails a risk of abuse and unlawful access (para 73).

 

The Court distinguished between ‘national security’ understood in the light of Article 4(2) TEU and ‘public security’ and matters within Article 15 ePrivacy Directive.  While measures safeguarding national security must still comply with Art 52(1) of the Charter, given the seriousness of threats comprised in ‘national security’ in principle the objective of safeguarding national security is capable of justifying more intrusive measures that those would could be justified by other objectives (cross referring to its reasoning in La Quadrature du Net). 

 

Even in relation to national security, the underlying national legislation must also lay down the substantive and procedural conditions governing use of the data and not just provide for access. National legislation must rely on objective criteria in order to define the circumstances and conditions under which the competent national authorities are to be granted access to the data at issue. Here, the national legislation requiring providers of electronic communications services to disclose traffic data and location data to the security and intelligence agencies by means of general and indiscriminate transmission exceeds the limits of what is strictly necessary and cannot be considered to be justified, within a democratic society even in the interests of protecting national security.

 

La Quadrature du Net/Ordre des barreaux francophones et germanophone

 

The Court’s approach to Article 15 and the sorts of activities in the service of which surveillance may be undertaken by contrast with Article 3(1) was, unsurprisingly, the same as can be seen in Privacy International, as was its approach to interpreting the directive – emphasising the confidentiality of communications as well as Articles 7 and 8 EU Charter. Again, the Court took the approach that the exception to communications confidentiality should not become the rule and that exceptions must be strictly necessary and proportionate to their objectives. Retention of communications data is a serious interference with fundamental rights – including freedom of expression. The retention of the data constitutes such an interference whether or not the data are sensitive or whether the user was inconvenienced.

 

In similar terms to Privacy International, the Court again came to the conclusion that the general and indiscriminate retention of data was impermissible under the Charter and Article 15. The Court also re-stated the limitations on derogating measures made under Art 15. The point of difference in this analysis is that the Court recognised the conflicting rights that might need to be reconciled – particularly with regard to crimes against minors and the State’s positive obligation to protect them. This does not mean that the limits as regards necessity and proportionality may be overlooked.

 

The Court then considered the meaning of national security – approaching the matter in the same terms as it did in Privacy International.  This higher threshold meant that neither the directive nor the Charter precludes recourse to an order requiring providers of electronic communications services to retain, generally and indiscriminately, traffic data and location data. This however is only so when the Member State concerned is facing a sufficiently serious threat to national security (which includes matters more serious than those listed in Art 15), a threat that is genuine and actual or foreseeable. In such a case retention can only be for a period of time limited to that which is strictly necessary. If any such order is to be renewed it must be for a specified length of time. The retained data must be protected by strict safeguards against the risk of abuse. The decision must be  subject  to effective  review by  an  independent body (court or administrative), whose  decision  is  binding, in  order  to  verify  that  such a situation exists and that the conditions and safeguards laid down are observed.

 

The Court observed that general and indiscriminate surveillance refers to that which covers virtually all the population. The Court recognised the duties of the State under positive obligations and the need to balance potentially conflicting rights. It then held that in situations such as those described at paras 135-6 of its judgment, that is those falling in Article 4(2) TEU, the e-Privacy Directive and the Charter do not preclude measures for targeted retention of traffic and location data. Such measures must be limited in time to what is strictly necessary, and focused on categories of persons identified on the basis of objective and non-discriminatory factors, or by using geographical criteria.  It then relied on similar reasoning in relation to the fight against crime and the protection of public safety.

 

Similarly, IP addresses may be retained in a general and indiscriminate manner subject to a requirement of strict necessity. Further, the directive also does not preclude the retention of data beyond statutory data retention periods when strictly necessary to shed light on serious criminal offences or attacks on national security, when the offences or attacks have already been established, or if their existence may reasonably be suspected.  Real-time data may also be used when it is limited to people in respect of whom there is a valid reason to suppose that they are involved in terrorist activities. Such use of data must be subject to prior review by an independent body to ensure that real-time collection is limited to what is strictly necessary. The Court notes that in urgent cases that the review should take place promptly (presumably rather than after the event).

 

Finally, a national court may not apply a provision of national law empowering it to limit the temporal effects of a declaration of illegality which declaration the national court must make in respect of national legislation due to incompatibility with the e-Privacy Directive, and evidence obtained illegally should not be relied on in court.

 

Comment

 

The common theme across the cases was the acceptability of the retention and analysis of communications data generally. The Court has re-iterated its general approach, unsurprisingly linking – as the Advocate General also did – between the Privacy International ruling and that in La Quadrature du Net.  In its approach, the Court relied generously on its previous rulings, which demonstrates that there is quite a thick rope of cases, all to broadly the same effect. While the Court based its ruling on the ePrivacy directive (which is specific to communications and communications data), it also based its ruling more generally on Articles 7 and 8 of the Charter.  It is noteworthy that the Court did not just refer to its case law on communications data but also to the Canada PNR opinion, underlining that there is a similar approach no matter the type of data in issue.  The Court also relied on Schrems II, implicitly confirming aspects of its approach there and embedding that decision in its jurisprudence. The underlying concern in Schrems II was the same as here: that is, data collected by private actors are accessed by state actors.  In sum, even in the interests of national security, general and indiscriminate surveillance does not satisfy the test of strict necessity and proportionality.  While its general approach might be similar to what has gone before, there are still some points of interest and new ground covered.

 

The IPT seems to have been the only court amongst those making references that still has not accepted that the retention of data falls within the scope of the e-Privacy Directive, relying on the reasoning of the Court on the Data Protection Directive in relation to passenger name records in an early case.  In addition to re-establishing the well-trodden principles regarding the impact of requiring electronic service providers to retain data bringing the entire scheme within scope of the e-Privacy Directive, and different functions of Article 1(3) (scope of directive) and Art 15 (derogation from directive), the Court took the opportunity to say something about the scope of the GDPR, the successor legislation to the Data Protection Directive. In effect, the Court has stopped the line of reasoning found in that early PNR judgment – it cannot be used to determine the scope of the GDPR which should be understood in line with Art 1(3) of the e-Privacy Directive.

 

The Court has emphasised a couple of aspects of the legal regime surrounding surveillance that are worth a second look. Firstly, while the Court says nothing about the form of law on which a surveillance may be based, in its analysis of Article 52(1) Charter it does say that the same law must contain the constraints. The principle then has wider application than just communications data. This raises questions about forms of surveillance rolled out by the police based on broad common law powers, or – as in the recent Bridges decision – in a mix of legislation, common law and code. These sorts of surveillance – although in public – may also give rise to a feeling of being subject to constant surveillance, though the Court’s jurisprudence on video-surveillance under the GDPR has not yet grappled with this issue. It may be, however, that the Court would take a different view on the extent to which ‘private life’ would be engaged in such circumstances.  It is also worth noting that the views of the independent body must be binding on the SIAs; this reiterates the point that in principle approval must be sought in advance.

 

The Court also made clear that the rights in issue are not just privacy and data protection; it specifically referred here to freedom of expression and flagged the distinctive of those under professional duties of confidentiality (doctors, lawyers) and whistleblowers. It did not, however, consider whether any infringement was justified in this context. The list of possible rights affected is not limited to freedom of expression: in Schrems II the Court highlighted the right to a remedy. It is not inconceivable that the right to association could also be affected.  Presumably the same points of analysis apply – that general and indiscriminate monitoring cannot be justified even in the interests of national security.  The Court also recognised, in La Quadrature du Net, the positive obligations on the State in relation to Article 3 and 8 ECHR and the corresponding article in the Charter – Articles 4 and 7. The balancing of these positive obligations provided the framework for the Court’s analysis of types of surveillance that did not immediately fall foul of its prohibition of of general and indiscriminate data retention. In this context, it might almost be said that the Court is reformulating public interest objectives (such as national security or the fight against sexual abuse of children) as positive obligations and thus bringing them in a rights balancing framework.

 

The Court’s reasoning in both cases also gave us some insight into the meaning of national security. It is distinct from and covers more serious issues that the objectives listed in Art 15.  While this in principle seems to allow more intrusive measures to be justified, it seems that the Court has limited the circumstances of when it can be used.  It does not overlap seemingly with those grounds in Article 15 e Privacy Directive. So, even might be argued reading this part of the judgments that serious crime cannot be blurred with national security.  The devil will be in the detail here, a tricky one for any independent body to patrol – and in terms of permitted surveillance it is not clear what the consequences in practice would be.

 

The headline news, however, must be the ruling of the Court relating to measures that do not fall within the prohibition as general and indiscriminate measures.  This on one level is not totally novel; it is implied, for example, in Tele2/Watson, para 106.  The questions relate to what level of generality of surveillance would be permissible, and in relation to what sort of objective? Para 137 seems to limit targeted retention of communications data to matters of national security (including terrorism), but the Court then wheels out the same reasoning in relation to serious crime and public safety, and seems to envisage similar safeguards in both cases.  This then means that the test of ‘strict necessity’ is doing a lot of work in distinguishing between the legitimate and illegitimate use of surveillance measures. The Court has historically not been particularly strong on what it requires of a necessity test – let alone one requiring strict necessity – in other cases involving the interference with Charter rights.

 

The final point relates to the procedural questions. The Court was clear that striking down incompatible law cannot have suspended effect. Yet, that is precisely what the English court did in Watson when allowing the UK government several months to get its house in order. The Court of Justice also held here that illegally obtained evidence cannot be used in court, relying on the need to ensure that the rights granted by EU law are effective.  While the status of EU law in the British courts may currently be uncertain on the face of it this might mean that convictions based on data between the handing down of Tele2/Watson, or at latest its application by the English courts, until the revision of the regime might be open to challenge whatever the domestic rules on evidence might say. Of course, even if we did not have to deal with the jurisprudential consequences of Brexit, the Court of Appeal, in its approach to Tele2/Watson ignored the aspects of the judgment directed at Tele2 referring court despite the fact that element of the judgment was an interpretation of EU law having general application, so it is to be assumed that still more would it ignore a ruling in a different case altogether.

 

Barnard & Peers: chapter 9

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