Halet v Luxembourg: A Victory of the Unsung Heroes

 

 

Dimitrios Kafteranis* and Stelios Andreadakis**

 

Photo credit: CherryX, via Wikimedia Commons

 

*Assistant Professor in Law, Centre for Financial and Corporate Integrity, Coventry University

** Reader in Corporate and Financial Law, Brunel University London

 

 

The Grand Chamber judgment of the European Court of Human Rights (ECtHR) on 14 February 2023 on the case Halet v. Luxembourg is a victory for whistleblowers and the right to freedom of expression. The long-awaited judgment has put an end to a legal battle of more than 10 years for Raphael Halet and rectified the previous decisions of the Luxembourg Court of Appeal and of the third Chamber of the ECtHR. The Court stated that whistleblowers should be protected under Article 10 of the European Convention on Human Rights (ECHR) when they report facts of public interest. The tax matters at hand were of public interest and the Court made a significant statement in that regard by protecting  Mr Halet, who did not report an illegal practice or a wrongdoing, but “certain information that concerns the functioning of public authorities in a democratic society and sparks a public debate, giving rise to controversy likely to create  a legitimate interest on the public’s part in having knowledge of the information in order to reach an informed opinion as to whether or not it reveals harm to the public interest”.

 

The Court had to decide whether Mr Halet’s criminal conviction, following the disclosure by him to a journalist of sixteen documents issued by his employer had amounted to a disproportionate interference with his right to freedom of expression. The Luxembourg Court of Appeal had decided that the damage that Mr Halet caused to his employer, PricewaterhouseCoopers (PwC), is not outweighed by the interest in having the information. This position was confirmed by the third Chamber of the ECtHR. The Grand Chamber referred to its established case law and the famous Guja criteria. These criteria are: (1) the channel for disclosure, (2) the public interest, (3) the authenticity of the information, (4) good faith, (5) damage to the employer and an assessment of whether such damage outweighed the public interest, and (6) the sanction imposed. While the Grand Chamber examined the six criteria again, the focus was on the fifth and sixth criterion.

 

First, the Court clarified that the criteria should be examined without a specific order as there is no hierarchy or order to be followed in their examination. Concerning the balancing of the public interest in the disclosed information and the detrimental effects of the disclosure, the Court did not consider it as a conflict of rights (as suggested by the Luxembourg government). It examined, instead, whether the domestic courts struck a fair balance between, on the one hand, the public interest of the disclosed documents, and, on the other hand, the entirety of the harmful effects arising from their disclosure. The Grand Chamber stressed that the Luxembourg Court’s requirement of “essential, new and previously unknown” disclosed information is not relevant. The Court highlighted that a public debate may be ongoing and additional information can come at a later stage. The fact that a public debate on tax practices was already in progress in Luxembourg could not reduce the relevance of the disclosed documents. The Court actually spent several paragraphs in its judgment on the importance of the debate around taxation and dubious practices of tax avoidance and tax optimisation extensively used nowadays. It is sometimes necessary for the alarm to be raised several times on the same subject before the public authorities, or the society as a whole, are mobilised and exercise increased vigilance.

 

On the issue of balancing the damage to the employer and the need of the public to be informed, the Court took a different stance compared to the previous decisions. While it acknowledged the detrimental effect of the disclosures on PwC, it was decided that the Luxembourg Court of Appeal did not sufficiently justify why the damage suffered by PwC had not been outweighed by the general interest. The criticism of the Grand Chamber was that the Luxembourg Court of Appeal only referred to “damage to …… image” and “loss of confidence”, but did not enter into details. In fact, PwC had “a difficult year” following the Luxleaks investigations, but quickly increased its revenues and expanded its activities again. The Court concluded that, in the balancing exercise made by the domestic courts, the public interest in the information revealed was analysed narrowly and, on the question of the damage, the Luxembourg Court only focused on the damaged sustained by PwC, disregarding other relevant issues, such as the harm also caused to the private interests of PwC’s customers and to the public interest in preventing and punishing theft and in respect for professional secrecy. As a result, the Grand Chamber found that the Luxembourg Court of Appeal erred on the assessment of this criterion.

 

Furthermore, the Grand Chamber examined the sixth criterion: the severity of the sanction. It highlighted the importance of whistleblowers for the society, while stressing that any undue restriction on them may have a chilling effect on and dissuade potential whistleblowers to come forward. Regarding the criminal conviction of Mr Halet, the Court concluded that it was not proportionate in light of the legitimate aim pursued and Luxembourg’s interference with Mr Halet’s right to freedom of expression was not “necessary in a democratic society”. The Court awarded €15000 non-pecuniary damage and €40000 covering costs. It should be noted that Mr Halet spent almost ten years in this legal saga, so it is worth considering whether this compensation can really make up for the financial damage he suffered, not to mention the damage to his career and professional standing. It should be taken into consideration that whistleblowers often lose their jobs and have to undertake lengthy and expensive legal battles, thus the courts should, in the future, look for more efficient ways to compensate them.

 

The joint dissenting opinion of the four Judges at the end of the judgment is also worthy of examination. The four Judges criticised the Grand Chamber’s approach on the notion of public interest, on the importance of safeguarding professional secrecy, on the balancing exercise and on the severity of the sanction. An important comment is that the dissenting Judges referred to Mr Antoine Deltour as a bad faith worker who stole documents. Considering that Mr Deltour was not found to be in bad faith and his “theft” was legally justified due to him being a whistleblower, the use of such characterisations by the dissenting Judges came as a surprise. The reasoning of the dissenting Judges reflects a rather “old-school” analysis of whistleblowing, which questions the co-existence of whistleblowing and professional secrecy as well as its relation to criminal law. The fact that whistleblowers report events, which are not illegal per se, but can initiate a public debate, is significant, as it promotes transparency, accountability and allows the public to find out about instances of wrongdoing. Having said this, it is important to note that everything should be done in a proportionate way and never in bad faith.

 

Overall, the Grand Chamber’s judgment can be seen as a victory for all unsung heroes, who blew the whistle and suffered retaliation, blacklisting and demotion. The Court sent a message that whistleblowers should be heard and not suppressed. As it was emphasised, the purpose of whistleblowing is not only to uncover and draw attention to information of public interest, but also to bring about change in the situation to which that information relates, where appropriate, by securing remedial action by the competent public authorities or the private persons concerned. This is what Ralph Nader had in mind, when he coined the term for the first time in 1960s: whistleblowing as an alarm mechanism, which aims at alerting, informing, changing, but, above all, protecting our democratic society.

The European Peace Facility – Another accountability gap?

 

Ellen Cantraine, PhD researcher, Ghent European Law Institute

Photo credit: Dietmar Rabich / Wikimedia Commons / “Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219” / CC BY-SA 4.0 / see also

 

Introduction

After the military coup attempt in 2021 in Mali, the mission of the EU to Mali (hereinafter “EUTM”) remained operational, despite evidence of severe wrongdoing by EU trained soldiers. EUTM was funded by the European Peace Facility (hereinafter “EPF”) and has revealed significant weaknesses in the external funding of the EU. According to the UN International Commission of Inquiry for Mali, Malian troops trained by the EU under EUTM have engaged in numerous abuses including extortion, ill-treatment and extrajudicial executions.

In a watershed moment in February 2022, the Council of the EU unanimously decided in its Decision 2022/339 to fund - likewise under the EPF - the provision of military equipment designed to deliver lethal force, to Ukraine in its Decision 2021/509 (hereinafter “EPF Council Decision"). On October 17, 2022 the Council adopted a Decision establishing the European Union Military Assistance Mission in support of Ukraine training mission of the EU to Ukraine (hereinafter “EUMAM”). The European Peace Facility (hereinafter “EPF”) will finance the common costs of the mission up to 106 million euro. It is the first time that the EU will finance the purchase and delivery of arms and lethal weapons. As summarized by EU’s Foreign Policy Chief, Josep Borrell, “another taboo has fallen”. Notwithstanding the importance of this move, questions are being raised about the respect for human rights in the implementation of the EPF in Ukraine and the concomitant lack of transparency, democratic oversight and accountability mechanisms.

Background

The EPF is an off-EU budget, financed by the EU Member States, which finances operations with military implications and provides support for inter alia training and equipment, including the provision of lethal weapons to EU partner countries. The EPF builds on the EU’s experiences with the Athena Mechanism and the African Peace Facility (hereinafter “APF”) and integrates this former support provided via the APF. Since its adoption in 2021, it has become the main source of funding for European Union external actions in the field of crisis management and conflict prevention. The EPF aims to facilitate the EU’s Global Strategy by contributing to the Common Foreign and Security Policy operations that are military and security oriented. Since the EU Treaty prohibits the use of its regular multiannual budget for activities of a military nature in Article 41 (2) TEU, the fund is off-budget. This off-budget qualification was proposed by the former High Representative, Federica Mogherini and requires unanimous approval by EU Member States through an EU Council Decision for funds to be allocated. All the while, Member States remain bound by Article 21 (1) TEU. When juxtaposing this commitment with the recent announcements of several arms deliveries from Member States to Ukraine, the question of compliance with the rule of law, linked to the principle of democracy and respect for human rights, in its external relations becomes even more pertinent.

According to Article 2 TEU the EU is founded on the rule of law and seeks to promote the values enshrined therein through its external action based on Article 21(1) TEU. A crucial factor in establishing the EU as a credible actor in its Common Foreign and Security Policy (hereinafter “CFSP”) and Common Security and Defence Policy (hereinafter “CSDP”) is whether it can live up to its own standards and values. We also find evidence of this in the EPF Council Decision. Article 56 (2) of the EPF Council Decision states that all assistance measures must comply with Union law and with Union policies and strategies, such as the Integrated Approach to external conflicts and crises. There is no provision for any form of judicial review by Court of Justice of the European Union (hereinafter “CJEU”) of the assistance measures. Given the restrictive judicial control exercised by the CJEU over CFSP and CSDP missions on the basis of Article 24(1) TFEU, foreign and security policy remains a traditional core area of exclusive Member State control. Against this backdrop, the question arises whether rule of law mechanisms ensuring transparency, accountability and democratic control are embedded in the EPF that allow for an ex-ante or ex-post verification of the use of the funding. The backlash of EU-delivered equipment going rogue could be significant but is currently being downplayed.

Øby Johansen previously examined the various accountability mechanisms available to the EU in its CSDP missions when human rights violations occur. He concluded that CSDP missions can cause human rights violations, that these human rights violations can be attributed to the Union and showed that it is doubtful whether the accountability mechanisms for CSDP missions provide sufficient protection for individuals whose rights have been violated (Øby Johansen, 2016). Conversely, Rutigliano argues that the current lethal equipment being sent to Ukraine appears to be in line with the principles of EU and international law (Rutigliano, 2022). However, she rightly points out that insofar the weapons are used in a non-compliant manner, this will lead to a complex issue of international responsibility and accountability. This is particularly important as the EPF is an extra-budgetary fund, not subject to parliamentary control by the European Parliament and does not fall under the scope of the judicial review by the CJEU. 

Problem statement

Considering the risks and misuse associated with delivering lethal equipment in already unstable and fragile contexts (Maletta & Héau, 2022), providing arms by Member States through an extra-budgetary fund should be transparent (European Parliament resolution of 17 February 2022 on the implementation of the Common Security and Defence Policy – annual report 2021)  to be in line with the EU’s integrated approach to external conflicts and crisis as a matter of good administrative practice, key to the rule of law. The principle of good administrative practice, enshrined in Articles 41 and 42 of the Charter, does not apply to CSDP missions as they do not constitute an EU body within the meaning of Article 15(3) TFEU. However, the EEAS remains bound, the European Ombudsman defines maladministration as follows: “maladministration occurs if an institution or body fails to act in accordance with the law or the principles of good administration, or violates human rights”. Particularly in the light of recent developments, namely the supply of battle tanks to Ukraine, it is even more important to ensure transparency in the supply of arms to be in line with Article 1 e) of Council Decision (CFSP) 2020/1464 of 12 October 2020. Especially, since some authors point out that before the Russian invasion, Ukraine was host of one of the largest illegal arms markets in Europe (Fotidiadis & Schmidt, 2022). Several EU principles, including transparency, democratic control and accountability, are severely under considered in the EPF.

In its Global Strategy, the EU declares its commitment to the principles of accountability, responsibility, effectiveness and transparency. Considering that legal and institutional transparency is essential for the exercise of accountability (Judgment of 21 April 2021, Pech v Council, Case T-252/19, para 26), and therefore for the respect of the rule of law in CSDP missions (European Parliament, Human Rights Factsheet). The EU fails to live up to its own standards in practice. The process of the arms deliveries and how these requests are made under the EPF are determined by the Integrated Methodological Framework (hereafter “IMF”). This framework sets out the guiding principles and possible concerns to be addressed when assisting partners in pursuit of the objectives of CSDP missions such as EUMAM and EPF assistance measures. Under this Framework, the Council will approve the assistance measure and will elaborate on the requirements which are necessary to allow for the delivery of military items. The beneficiary of the items should respect international law, particularly international human rights law and international humanitarian law. One important side note, the framework is not made public.

In January of last year, a complaint was lodged with the European Ombudsman to make the IMF Framework public. The complaint was rejected on the basis of the exception in Article 15 TFEU, the EEAS argued that disclosing the documents could undermine the protection of the public interest (European Ombudsman, Case 124/2022/NH). Article 15 (3) TFEU, “any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph”. While transparency is a prerequisite for implementing an accountable and legal system in accordance with the rule of law, the legal framework for public access to documents does not apply to CSDP missions. As CSDP missions are not EU bodies within the meaning of Article 15 TFEU (Judgment of November 12, 2015, Elitaliana SpA v Eulex Kosovo, Case C-439/13, para 54), they act under the responsibility of the Council and the High Representative of the Union for Foreign Affairs and Security Policy. They are not subject to the requirements of access to documents, nor to Articles 41 and 42 of the Charter. In order to fill this legal vacuum, some CSDP missions adopt a specific policy on public access to documents (EUNAVFOR MED Operation SOPHIA), but transparency remains dependent on the good-will of each CSDP mission itself. There are calls for more transparency from the top down. In the 2021 annual report on the implementation of the CSDP missions, the European Parliament calls for regular and transparent evaluation of all CSDP missions and actions.

Additional to the lack of transparency and to the entire arms delivery process, there is no democratic control over the decisions to supply. The Lisbon Treaty has not greatly increased the democratic scrutiny over CFSP and CSDP by the European Parliament. Moreover, as the EPF is established as an intergovernmental CFSP instrument, the European Parliament is not involved and has no formal oversight role. Instead, it is the EEAS that will ensure monitoring and control based on the situation on the ground. Whether the EEAS’ risk analyses are always correct is questionable however, as the Mali experience is a blazing example of this. The mission was implemented and coordinated by High Representative and the EEAS. Despite the training of the Malian Armed Forces under the EUTM mission, some members committed abuses such as ill-treatment, extortion and extrajudicial executions (UN International Commission of Inquiry for Mali, 2021). Moreover, a former EUTM trainer claims that the fact that there have been abuses justifies the EU’s training mission: “If the Malian army was already perfect, it wouldn’t need EUTM’s support.” The EEAS has previously fallen short in following up on missions, and not all policy documents are made public in Mali. While acknowledging the need for (limited) military confidentiality, legal and institutional transparency remains a key element to build accountability (Barnard & Peers, European Union law 2017). The lack of adequate mechanisms to protect against human rights violations has not gone unnoticed by NGOs. In October last year, a complaint was lodged with the European Ombudsman. The complainants are of the opinion that the EEAS has failed to properly assess the potential risk to human rights and to carry out impact assessments in relation to its technical assistance engagement with non-EU countries (European Ombudsman, Case 1472/2022/MHZ).

The EEAS has an explicit obligation to uphold human rights and the rule of law in its relations with third countries. The new EU Action Plan on Human Rights and Democracy 2020-2024 provides several tools, but these remain rather “empty” and unenforceable regarding CSDP missions. CSDP missions are not official EU bodies and fall under the responsibility of the EEAS. Several NGOs have recently lodged a complaint with the European Ombudsman, claiming that EU institutions and agencies have an explicit obligation to promote human rights and the rule of law in their relations with third countries, this also applies to the EEAS (European Ombudsman, Case 1472/2022/MHZ). Nevertheless, the EEAS shows a lack of ex-ante human rights impact assessments. These assessments can be a useful tool for arriving at a balanced assessment of the potential impact of a CSDP mission. So far, the trade-off between secrecy and transparency tends mainly towards the former, at the expense of respect for human rights and the rule of law. 

If the EEAS fails, national parliaments could arguably exercise an oversight role on the basis of Articles 10 (2) and 12 TEU. Unfortunately, national parliaments are not the right institution to control the CSDP missions. National parliaments do not have the necessary knowledge, experience or information to exercise adequate democratic control over specialized CFSP budget allocation. It is extremely difficult for members of national parliaments to acquire the necessary oversight and expertise to be able to judge these decisions effectively. As a result of the weak and formal national democratic powers, the structural shortage of information and lack of transparency there is a weak de facto and de jure accountability for information and for conduct. This applies to both the European and national levels. The European Parliament wants to exercise effective control, which would only increase the accountability and transparency of the EPF, but there is no legal basis for this in the TEU. This leads to CSDP missions which are to a large extent politically unchecked at national and European level. Some scholars argue that parliamentary control by national parliaments is a necessary complement to the scrutiny of the European Parliament but cannot be a replacement (De Baere, 2008). The clear lack of democratic control at national and European level is alarming, especially regarding the check with (international) human rights.

Lastly, as far as accountability is concerned, several scholars have already discussed this issue. Their observations show that there are few sufficient accountability mechanisms at the European level, and that accountability is mainly provided at the national level, as far as the CSDP and CFSP are concerned. In case of misuse of supplied weapons in Ukraine, the Member States concerned can be held responsible. However, sufficient information must first be available to identify the responsible party. The limitation of accountability mechanisms could be offset by the potential role of the European Parliament in scrutinizing EU actions in the context of CSDP missions (Schmidt, 2020). However, in the case of the EPF, the European Parliament remains painstakingly absent from the “democratic “picture.

The current governance structure of the EPF - operating under a Facility Committee - reduces costs and it facilitates consistency at the expense of compliance with international human rights. The demand for transparency and accountability is particularly important in the current context of abuses in CSDP missions, which are often swept under the rug. Transparency, accountability and democratic control need to be worked on for the past to not repeat itself.

Concluding remarks

As noted above, the EPF is a new off-budget fund, here the main problems of transparency, lack of parliamentary oversight and accountability have emerged, which several scholars have already argued are substandard in CSDP missions. Moreover, without adequate safeguards, the EPF threatens weakening the rule of law worldwide and could possibly contribute to potential human rights abuses. The lack of adequate rule of law mechanisms is difficult to reconcile with the EU’s ambition to “lead by example” in its external relations and that claims to stand up for transparency, accountability and responsibility in its integrated approach.

Given the uncertain and volatile geopolitical environment in which the EU finds itself, the choice for the EPF makes strategic and operational sense. However, there is a need to ensure that the governance structure of the EPF can act appropriately and learns from the lessons of the past.  It now appears that there is a policy of flashpoint without a clear framework of democratic scrutiny, transparency and accountability. In times of crisis, appropriate and rapid action must be taken, but it cannot be that certain EU values, and international human rights are openly flouted. The lessons of the past are there to be learned, not repeated.

The EPF is important for putting Europe on the map and for providing military decisiveness in times of crisis. Given the problems of accountability as a form of ex-post control, already outlined, it would be appropriate to insist at least on transparency ex-ante with democratic scrutiny by the European Parliament, so that there is one safeguard to check that international human rights and the of the rule of law more broadly, are being respected. The EU's ambition to be a 'credible Union' in its external action, upholding its own values – accountability, transparency and democratic control, falls short.

Allister: the effect of the EU Withdrawal Act

 

Anurag Deb, PhD researcher, Queen's University

Photo credit: Dom0803, via Wikimedia Commons 

In the uncertain aftermath of the Brexit referendum and shortly after Theresa May had succeeded David Cameron as Prime Minister, she had announced her intention to move a ‘Great Repeal Bill’ to undo what Lord Denning had once described as the ‘incoming tide’ of EU law. That Great Repeal Bill became the EU Withdrawal Act 2018, amended in 2020 by the EU Withdrawal Agreement Act 2020. But did this stop the incoming tide? Not particularly – there are post-exit arrangements baked into the 2018 Act in order to provide certainty to, for example, people who have cases reliant on EU law progressing through the courts at the point of exit, so that their cases are not extinguished overnight.

 

However, savings provisions to ensure legal certainty are fairly common in legislation. What is somewhat more uncommon is for the legislation designed to achieve one purpose to be amended almost two years later to partially (and significantly) achieve its opposite purpose. This is a post which looks at the effect of section 7A of the 2018 Act, inserted by the 2020 Act, and what the Supreme Court said about it in Allister and Peeples’ applications for judicial review.

 

Section 7A: the reopened gateway

 

Section 7A adopts much of the same language as the now-repealed section 2(1) of the European Communities Act 1972 – the very same provision which Denning MR described as governing the ‘incoming tide’ of EU law. This tide does little for most of UK law, however, given that the Withdrawal Agreement, which section 7A incorporates, generally provides for the severance of the UK from the EU legal order. But this is not true of Northern Ireland, which is addressed by its own Protocol.

 

The content of the Protocol varies widely, but its major function is the continued application in Northern Ireland of aspects of the EU Single Market in goods as well as its customs code. There are additional guarantees regarding equality and non-discrimination, which link with the Good Friday Agreement. The detail of this is covered by Colin Murray in his post on Allister and Peeples, and I will not be covering it here. Nor will I cover the well-trodden discussion of the constitutional statutes doctrine, in light of the judgment. Some have discussed its demise (Murray, David Allen Green and John Bell) while others have defended its continuing health (Oliver Garner and myself). Instead, I will be covering a single paragraph of the Supreme Court judgment – a single paragraph which contains significant possibilities.

 

The gateway through which the Withdrawal Agreement (and the Protocol) enters domestic UK law is section 7A. In addition to incorporating the Withdrawal Agreement, section 7A also gives effect specifically to two highly important aspects of the Withdrawal Agreement. The first aspect is direct effect (Withdrawal Agreement, Article 4(1); section 7A(1) and (2) of the 2018 Act), by which people may directly rely on the provisions contained in or referred to in the Withdrawal Agreement. The second aspect is to subject every enactment (including the 2018 Act itself) to the provisions of the Withdrawal Agreement (Withdrawal Agreement, Article 4(2); section 7A(3) of the 2018 Act). This trifecta of consequences was used to great effect by the Supreme Court when faced with a particular conundrum.

 

The modification of the Northern Ireland Act

 

The Northern Ireland Act 1998 is the primary legislation governing modern devolution in Northern Ireland. The relevant part of the statute for this post is section 42, which creates a powerful legislative mechanism unique in the UK’s legislatures. This mechanism, the petition of concern, is a petition which can be moved by as few as one-third of MLAs and if so moved, triggers a requirement for cross-community support in respect of the matter against which the petition was moved. Cross-community support is significantly more difficult to achieve than a simple majority, especially in a legislative body which can at times be highly polarised. But section 42 was originally applicable to any matter on which the Assembly was to vote. This was amended in 2022, and I have covered the circumstances of that amendment elsewhere.

 

The important point, however, is that section 42 remained applicable to any Assembly vote at the time that the Protocol was incorporated. Almost a year after this incorporation, the Northern Ireland Secretary made new regulations with sweeping consequences. These regulations were made to provide for the so-called ‘Stormont consent vote’, by which the Northern Ireland Assembly votes periodically on the question whether or not to continue the application of EU law on goods and customs. The provision of this vote was required by Article 18 of the Protocol as well as the UK Government’s unilateral declaration on providing the vote, neither of which mentioned section 42 or the petition of concern mechanism. Now, these regulations disapplied section 42 to the consent vote. The appellants in Allister and Peeples challenged this disapplication as being in breach of the Northern Ireland Act, which was prohibited by section 10 of the 2018 Act. Thus, the appellants said, the regulations were unlawful.

 

The Supreme Court resolved this issue in paragraph 108 of its judgment. While the paragraph is lengthy, it essentially says that there was no breach of section 10 of the 2018 Act because section 7A had already modified section 42 of the Northern Ireland Act. This had occurred because Article 18 had created an obligation on the UK Government to provide for the consent vote ‘strictly in accordance’ with the terms of the unilateral declaration, which, together with Article 18, both provide for a decision based on a majority of MLAs. Section 42 would subject this to the requirement of cross-community consent. Therefore, because of the overriding nature of section 7A, the obligation created by Article 18 and the unilateral declaration modified section 42. The regulations, as a result, did not breach the Northern Ireland Act.

 

The Supreme Court’s reasoning is considerably different from that of the Court of Appeal and the High Court on this point, both of which zeroed in on the breadth of the powers of delegated legislation conferred on the Northern Ireland Secretary under section 8C of the 2018 as a complete answer to this issue. Both courts reasoned that the regulations, having been made under section 8C and in accordance with the conditions attached to that power under the 2018 Act, were made lawfully – independent of the question whether section 7A had already modified the Northern Ireland Act before the making of the regulations.

 

The implications

 

The Supreme Court’s reasoning is far from obvious when scrutinising the content of section 42 (as it originally existed), Article 18 and the unilateral declaration. First, section 42 is a conditional provision – it needs a minimum threshold of MLAs to be triggered. While it was possible to trigger section 42 in any matter on which the Assembly voted, possibility does not equate to a guarantee. In other words, section 42 would not automatically have subjected a consent vote to the requirement of cross-community support unless the 30-MLA threshold was triggered. Moreover, both Article 18 and the unilateral declaration contain the possibility of a decision to continue the application of EU law made with cross-community support (which triggers a longer waiting period before the next consent vote) – a matter the Supreme Court curiously omits to mention.

 

So, how can paragraph 108 be interpreted? Accepting the Court’s judgment as correct (which should be obvious given that no appeal is possible from a judgment of the Supreme Court) raises an interesting point. Section 7A incorporates some EU law, but through the Withdrawal Agreement (and Protocol). The Withdrawal Agreement is not a passive vehicle in this incorporation, but creates rights and obligations distinct from the EU law in respect of which it also creates obligations. After all, the consent vote is a creation, not of EU law, but of the Protocol. Thus, not only does section 7A modify domestic law in consequence of aspects of EU law, but also in consequence of the Withdrawal Agreement as a distinct source of law by itself. Moreover, as nowhere in either Article 18 or the unilateral declaration was there any explicit obligation to disapply section 42, it follows that section 7A modified domestic law by necessary implication of giving effect to the Withdrawal Agreement and the Protocol.

 

I return briefly to Denning MR’s analogy, with the incorporated EU law as an incoming tide. Incoming tides raise water levels, but they can also change the appearance of coastal areas over time. This is a possible reading of the Supreme Court’s reasoning – that section 7A brings in both EU law and Withdrawal Agreement law and modifies the domestic legal order around these sources of law – both by giving primacy to the explicit provisions of these sources and as a necessary consequence of their incorporation.

 

What this means for the future of the Protocol’s operation in Northern Ireland is difficult to tell precisely. But what is reasonably certain is that a single paragraph of the Supreme Court’s judgment contains a disproportionately vast potential.

Of Third ‘States’, ‘Countries’ and Other Demons - The CJEU’s Judgment in Case C-632/20 P Spain v Commission (Kosovo)

 

Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl

Photo credit: Aljabakphoto, via Wikimedia commons - Šar Mountains National Park in Dragaš, Kosovo

On 17th January 2023, the Court of Justice of the European Union delivered its judgment in Case C-632/20 P Spain v Commission (Kosovo) ruling that notwithstanding the EU’s non-recognition of Kosovo as a State, Kosovo may participate in an EU agency, namely the Body of European Regulators for Electronic Communications (BEREC). The judgment is significant since it clarifies the meaning of the concept of ‘third country’ - as including territorial entities which have not been recognized by the EU as sovereign States - and confirms that such entities may participate in EU agencies. The judgment may also have more far-reaching consequences in the light of Kosovo’s 2022 bid for EU membership.

The case is an appeal against the GC’s judgment of 23 September 2020 (T-370/19, for comment see here and here). At first instance, the GC rejected Spain’s complaint to the effect that participation of Kosovo’s National Regulatory Authority (NRA) in BEREC is precluded since the EU has not recognised Kosovo as an independent State and thus, it does not constitute a ‘third country’ within the meaning of Article 35 of the BEREC Regulation. The GC argued that the fact that the TFEU makes reference both to ‘third States’ and ‘third countries’ implies that the latter concept is broader and thus, that it is “clearly intended to pave the way for the conclusion of international agreements with entities ‘other than States’” (T-370/19, para. 30). Spain appealed the GC’s judgment and AG Kokott delivered her Opinion on 16 June 2022 (for comment see here).

This blogpost will focus on what is - arguably - the most important aspect of the judgment, namely how the CJEU treated the question of Kosovo’s participation in an EU agency as a ‘third country’ despite the absence of EU recognition of its (claimed) Statehood. It needs to be noted that the background against which the judgment was given is not only politically laden, since five EU member States oppose Kosovo’s claim to Statehood, but also quite complex from an international law point of view – since the international legal status of Kosovo is unclear and legal opinion is divided (Vidmar, p. 44; see however, Crawford, p. 289). While the CJEU (wisely) refrained from delving into questions of Statehood and recognition, which are closely but not directly linked to the dispute at bar, its (rather terse) pronouncement on the issue at bar shows a reluctance to engage with relevant international legal considerations – something that ultimately detracts from its persuasive force.

 

Summary of the Judgment

Spain’s grounds of appeal boiled down to two main questions: a) whether Article 35 (2) of the BEREC Regulation in conjunction with Article 111 of the EU-Kosovo Stabilisation and Association Agreement (SAA) permit the participation of the NRA of Kosovo in the work of BEREC; and b) whether the Commission enjoyed the institutional competence to adopt the decision on the participation of the NRA of Kosovo in BEREC. In relation to the first question, Article 35 (2) of the BEREC Regulation allows the participation in the agency of ‘third countries’ where those countries have entered into agreements with the EU to that effect. Thus, the interpretation of the concept of ‘third countries’ is key here. More particularly, Spain argued that adopting the GC’s broad understanding of the concept of ‘third countries’ under EU law (as including entities other than States) would create an autonomous category of EU law and it would thus confer on the concept a different scope in EU law from that in international law (para. 35).

The CJEU did not uphold the distinction between ‘third States’ and ‘third countries’ propounded by the GC (paras. 37- 47). More particularly, the Court argued that this distinction is not made in all language versions of the Treaties, and thus, it cannot necessarily be inferred that a difference in meaning between these two concepts exists as a matter of primary law (paras. 39-42). Noting that in some language version of the Treaties the terms are actually used synomously, the CJEU reprimanded the GC for failing to take into account the relevant linguistic divergences and thus, to pay heed to settled case-law to the effect that different language versions must be interpreted in a uniform manner and that no language version can be made to override others (paras. 40-42). Since the GC’s finding that the concept of ‘third countries’ within the meaning of Art. 35 (2) of the BEREC Regulation goes beyond the concept of sovereign States was made on an erroneous premiss, namely that of a difference in meaning between ‘third States’ and third ‘countries’ in primary law, the CJEU found that the GC’s reasoning was erroneous.

Against this backdrop, the CJEU continued by exploring whether the term ‘third countries’ in Art. 35 (2) of the BEREC Regulation could encompass Kosovo. The Court found that the principle of effectiveness entails that an entity not recognized as a sovereign State should be treated as a ‘third country’ within the meaning of that provision “while not infringing international law” (para. 50). As far as the latter is concerned, the Court referred to the ICJ’s Advisory Opinion on the Kosovo Declaration of Independence as proof that Kosovo’s unilateral declaration of independence did not violate international law, UNSCR 1244/1999, or the applicable constitutional framework (para. 51). Furthermore, the Court argued that this conclusion does not affect the individual positions of Member States since the Commission’s decision concerning the participation of the NRA of Kosovo in BEREC expressly states that the designation ‘Kosovo’ is without prejudice to positions on status (para. 52).

The Court turned next to the interpretation of the concept of ‘third country’ in Article 35 of the BEREC Regulation. Article 35 (2) of the BEREC Regulation stipulates that participation in the agency requires the existence of an ‘agreement’ between the third country and the EU ‘to that effect’ (para. 54). It underscored the fact that the Union has entered several international agreements with Kosovo, “thus recognizing its capacity to conclude such agreements” (para. 55). Article 111 of the SAA provides for co-operation between the EU and Kosovo in the area of electronic communications and is similar in substance to corresponding arrangements made with other Western Balkan States which were deemed sufficient for their NRAs to participate in BEREC. Thus, it is logical to conclude that the provision also covers the arrangement with Kosovo (paras. 56-59). The fact that the notion of ‘third country’ also extends to entities such as Kosovo is further buttressed by having recourse to the purpose of Article 35 (2) of the BEREC Regulation. The provision was adopted with a view to ensuring the consistent implementation of the regulatory framework for electronic communications and thus, it corresponds to the objective of Article 111 of the SAA which is that Kosovo should adopt the EU acquis in that sector (paras. 61-63).

By way of contrast to the GC, however, the CJEU found that the Commission lacked the institutional competence to unilaterally draw up working arrangements applying to the participation of the NRA of Kosovo in the work of BEREC, and thus, it set the judgment under appeal aside and annulled the relevant decision – while maintaining its effects until its replacement by a new act (paras. 96-140).

 

Comment

Interpretative Approach and Methodology

While the Court, in a similar vein to the AG, upheld the principle of linguistic equality which dictates that different language versions must be construed in a uniform manner and that, therefore, an interpretation of the concept of ‘third countries’ on the basis of the Treaties alone is inconclusive, it refrained from clearly setting out its methodological choices in interpreting the term on the basis of the BEREC Regulation. The Court merely relied on the purpose of ‘ensuring the effectiveness’ of Art. 35 (2) of the BEREC Regulation in order to argue that Kosovo should be considered as falling within the scope of the concept of ‘third country’ within the meaning of the provision. However, it is not immediately apparent how the principle of effectiveness guides the interpretative process in casu. Arguably, the Court missed here an opportunity to clarify the role of effectiveness as an interpretative guide which emphasises, or even prioritises, a teleological approach when the interpreter is confronted with equally plausible interpretative choices. By way of contrast, the AG clearly articulated the framework of enquiry into the meaning of the term in the Regulation (by having recourse to its regulatory context, origin, purpose as well as relevant international legal considerations) (AG’s Opinion, paras. 64-86) – an approach which was methodologically sound and thus, led to a much more convincing line of reasoning.

 

The Concept of ‘Third Country’ and Relevant International Legal Considerations

It is important to note that the CJEU was quite laconic in its reasoning as to why Kosovo should be considered as a ‘third country’ and it did not really invoke relevant international legal practice in order to substantiate the view that Art 35(2) of the BEREC Regulation should be interpreted as covering territorial entities that have not been recognized as ‘States’ by the Union.

There are many reasons why this approach is problematic. First, by omitting such references, the Court failed to address Spain’s argument to the effect that affording a broader meaning to the term ‘third countries’ under EU law would create discrepancies with international law – “while States are the key subjects of international relations” (para. 35). Both the GC (paras. 31-32) and the AG (paras. 83-85), had invoked the treaty-practice of the Union itself with territorial entities that have not been recognized as sovereign States by the EU - such as PLO, Hong Kong and Macao as well as Kosovo - in order to buttress the proposition that entities, other than States proper, may also enjoy (limited) capacity to act on the international plane. Indeed,  modern international law acknowledges that legal personality is a spectral concept – while States are actors that “possess the totality of international rights and duties recognized by international law” (ICJ, Reparations for Injuries, p. 180), other actors (such as insurgent groups, national liberation movements and non-self-governing territories) may enjoy a degree of legal personality that affords them the capacity to act on the international plane (including treaty-making capacity). Thus, as the Union’s own treaty-making practice attests to, disengaging international legal personality from the capacity to act avoids the misleading dichotomy between ‘subjects’ and ‘objects’ of international law (as Spain’s argument goes) and allows the weight of enquiry to fall on the extent of the legal capacity a particular entity enjoys in each case. The capacity to act, including treaty-making capacity, is largely a question of recognition; other actors must recognize the (limited) capacity of an effective territorial entity by entering into legal relations therewith. To be sure, the CJEU did mention that “the European Union has entered into several agreements with Kosovo, thus recognizing its capacity to conclude such agreements” (para. 55) – which arguably shows a degree of awareness of the distinction between States, as the subjects par excellence of international law, and the wide circle of participants (with varying degrees of legal capacity) in modern international law. However, the Court’s failure to expound on the issue and to provide examples from international legal practice or from the Union’s own treaty-making practice with non-recognized entities for that matter means that its logic remains implicit.

Secondly, this omission is also rather unfortunate in the light of the ‘effectiveness’ argument put forward by the CJEU. The Court could have grounded its effet utile argumentation exactly by pointing to the wide circle of participants on the international stage. Thus, the Court could have relied on this line of practice to further bolster the proposition that a broad interpretation of the provision at hand is needed in order to ensure that the EU functions as an effective actor on the global stage – which is no longer dominated by States alone. Of course, this construction would entail affording a greater role to effectiveness considerations in the context of interpretation than what they currently have. Instead of the narrower role of protecting the full effect of EU law, considerations of effectiveness of the type asserted here would entail protecting the effectiveness of EU external action – thereby providing the Court with extra tools to ensure the functionality of the Union as an international actor.

In this light, it is perhaps ironic that the Court’s actual reference to international law in the judgment is rather cryptic. The Court stated that on grounds of securing the effectiveness of the provision at hand entities not recognized as sovereign States by the Union should be treated as ‘third countries’ within the meaning of that provision “while not infringing international law” (para. 50). It is unclear what the non-infringement of international law meant. The Court’s subsequent reference to the ICJ’s Advisory Opinion on the Kosovo Declaration of Independence (para. 51) presumably implies that Kosovo can be considered as a ‘third country’ since its declaration of independence does not violate international law – as per the ICJ’s Advisory Opinion.

This is where things get murky. According to Art. 41(2) of the ILC Articles on State Responsibility, there is an international law obligation bestowed upon third parties not to recognize either formally or implicitly an effective territorial situation created in breach of a jus cogens norm (see also Advisory Opinion on the Kosovo Declaration of Independence  para. 81).  However, the CJEU was wrong to assume that the ICJ’s Advisory Opinion answered the broader question of the legality of Kosovo’s unilateral secession from Serbia. The ICJ merely gave an affirmative answer to the considerably narrower question of the accordance of Kosovo’s’ unilateral declaration of independence with international law – without touching upon questions of Statehood or recognition. Since a declaration of independence in and of itself does not create a State, or a new legal situation, it may be considered a legally neutral act – or as Crawford eloquently put it “the sound of one hand clapping.” (Crawford, p. 47). In this light, the CJEU’s reliance on the ICJ’s dictum in order to support the proposition that dealing with a territorial entity as a ‘third country’ under EU law does not infringe international law was rather misplaced.

In reality, there was no need for the Court to make this particular reference to ‘infringements of international law’. The case did not directly involve any questions of formal – and more importantly, implicit - recognition by the Union of Kosovo as a State and hence no question of responsibility of the Union could technically arise here. Art. 2 of the Kosovo SAA expressly states that the agreement does not constitute recognition of Kosovo’s status as a State by the Union and, similarly, the Commission decision at hand expressly states that the designation Kosovo “is without prejudice to questions of status.” The AG avoided this misstep much more eloquently – by addressing the question whether the Commission’s decision constituted implicit recognition of Kosovo as a ‘State’ head on (paras. 87-91).

The above remarks leave the question of whether the EU has an obligation under international law to withhold recognition of Kosovo as a State open. The answer is quite complex and it cannot be comprehensively answered here. There are however several indicia that such an obligation of non-recognition does not exist in relation to Kosovo. First, there is little evidence to suggest that Kosovo’s unilateral secession was attributed to a violation of a jus cogens norm and in casu no specific resolution by the UN calling for collective non-recognition has been issued (by way of contrast to, for example, Southern Rhodesia or the TRNC). Recognition by other States also plays an important role here – having a curative effect in relation to possible deficiencies in which a State came into being (Supreme Court of Canada, Reference re Quebec, para. 155). Some 100 States have recognized Kosovo’s claim to Statehood – something which could be viewed as evidence that Kosovo’s attempt at State creation has been successful.

Despite its shortcomings in terms of reasoning on the basis of international law, the judgment is important as it clarifies that the (rather artificial) distinction made by the GC between ‘third States’ and ‘third countries’ does not exist – at least as a matter of EU secondary law. Its implications for Kosovo’s future relations with the EU remain to be seen – particularly since the question of whether Kosovo constitutes a ‘State’, as Art. 49 TEU seems to require, remains open.

Maybe we Like the Misery: The Culmination of the Northern Ireland Protocol Litigation

 

Colin Murray, Professor of Law, University of Newcastle

Photo credit: ChrisVTG photography, via Wikicommons media

 

In October 2019 Boris Johnson’s Government concluded a Withdrawal Agreement with the EU which included a version of the Northern Ireland Protocol based on high alignment for rules applicable to goods between Northern Ireland and EU law. No comparable arrangements covered goods rules for Great Britain. In January 2020, Westminster enacted legislation to give effect to this deal. At this point, with the Trade and Cooperation Agreement still to be negotiated, the UK Government could have made a concerted effort to conclude a high alignment deal with the EU, in particular in areas like plant and animal products (covered by extensive SPS rules). Instead, it concluded an Agreement focused on avoiding tariffs or quotas which would generate substantial regulatory barriers to trade in goods, including between Great Britain and Northern Ireland, as soon as the Brexit transition/implementation period ended.

 

Knowing this crunch point was coming, it negotiated grace periods of a few months to let traders adapt to the new regime. Unsurprisingly, this arrangement brought with it major upheavals with potentially severe impacts for the small and peripheral economy of Northern Ireland. Two routes lay open to the UK Government. Further cooperation with the EU through the Withdrawal Agreement’s technocratic mechanisms (especially the Specialised Committee on the Protocol, feeding into the Withdrawal Agreement’s overall Joint Committee) to mitigate the impacts of the Protocol, or confrontation and an attempt to re-write the Protocol’s terms. In the two years that have followed, there has been a lot of the latter and very little of the former, with the oft-stated reason being the UK Government’s belated acknowledgement that Unionist sentiment in Northern Ireland was opposed to the Protocol’s terms.

 

At the heart of Unionist concerns over the Protocol is the ideas that it treats Northern Ireland so differently from Great Britain in terms of goods that it weakens its place within the United Kingdom. There are a number of strands to this argument; that parts of the Act of Union are impacted by the operation of the Protocol, that there is no cross-community consent to its operation, in breach of the Belfast/Good Friday Agreement of 1998, and that Northern Ireland is left subject to EU laws over which it has no say. All of these complaints were bundled together into the Allister litigation. This challenge has been rebuffed by the High Court and the Court of Appeal, but has been sustained in the hope that something different would come to pass in the Supreme Court. It has left the UK Government playing two tunes; brandishing Unionist concerns as the mainstay of its efforts to have the implementation of the Protocol reworked, but resisting them in the courts.

 

This is was always the high-stakes nature of the legal challenge. The constitutional concerns over the Protocol might have considerable rhetorical pull with Unionist voters. But as soon as a court is asked for final determination on these questions, politicians can find the rug pulled from under their feet. And now that the UK Supreme Court has rejected the Allister challenge, that outcome matters. It will be raised every time Unionists attempt to question the Protocol’s compatibility with Northern Ireland’s status as part of the UK.

 

In meeting that challenge, the Supreme Court responded with the deadest of dead bats. There would be no rolling debate over the nature of the UK Constitutional order across multiple judgments, or even a special enlarged panel for the hearing (which might have been expected given the issues at stake). This judgment is no Jackson or Miller. Instead, Lord Stephens, Northern Irelands’ judge on the Court, issued a judgment with which the other four justices simply agreed, and largely said “I agree with what the Northern Ireland Court of Appeal said”. It is a marker of just how fraught the debate around Brexit and Northern Ireland has become that the issues around interpreting statutes with significant constitutional statutes can be reduced to the following statement (at [66]):

 

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

 

This is none-too-subtle code for the Court actively avoiding engaging in such debates in these circumstances. Whereas the lower court judgments contain important analysis of just what we should make of Northern Ireland’s legal order after Brexit, Lord Stephen’s wraps up the issue of the conflict between constitutional statutes remarkably quickly (also at [66]):

 

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament. Furthermore, the suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute. The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme.

 

Thus, for as long as the Protocol applies, the will of Parliament is that Article VI of the Act of Union should operate in a modified way. This amounts to a rolling back, even if not fully discussed, of the potential of the “constitutional statutes” doctrine as articulated in cases like Thoburn. There is no need for Parliament to expressly acknowledge that its new legislation will affect constitutionally significant statutes, and it is able to do so in the most general of terms, provided that the impact is clear. And no one, least of all the appellants, can reasonable claim that the impact of the Northern Ireland Protocol came as a surprise, when they were campaigning against it vociferously at the time the 2020 Act was enacted. The current Supreme Court continues its opposition to any legal doctrine which it sees as a constraint upon the will of Parliament. Dicey would be thrilled.

 

Adopting some of the language favoured by the appellants, Lord Stephens concludes (at [68]) that ‘the subjugation of article VI is not complete but rather article VI is modified in part. Furthermore, the subjugation is not for all time as the Protocol is not final or rigid so that those parts which are modified are in effect suspended.’ But make no mistake that the Court is saying that this outcome was not, in short, the malign work of some foreign power, but the result of an Agreement willingly concluded by the UK Government and ratified by Westminster. The input of Parliament into the process was all important in this account.

 

The Allister litigation was therefore tilting at windmills, with the Supreme Court never going to conclude that the Act of Union was somehow substantively entrenched, in the face of the working of parliamentary sovereignty within the UK Constitution. The Court is, here, giving itself the maximum possible wiggle room in light of the delicate state of the Protocol. If the present Parliament wants to enact the Northern Ireland Protocol Bill, and fail to give full effect to the UK’s commitments in the Withdrawal Agreement, the Court is signalling that it would be unwilling to stand in the way. But the judgment also reflects the reality that the Protocol’s operation might well be modified as a result of the UK Government’s ongoing talks with the EU, and that any such outcome is not the basis of a constitutional dispute.

 

The other operative elements of the judgment are even more curt. Lord Stephens simply repeats paragraph 135 of Miller; the principle of consent under the 1998 Agreement relates to Northern Ireland’s status as part of the UK; it has no ‘wider meaning’ (at [84]). And as for the modification of proceedings in the Northern Ireland Assembly and the absence of a cross-community consent vote around the continuation of the Protocol’s trade terms, there was no deep evaluation of the limits to cross-community consent under the 1998 Agreement. Parliament had provided the necessary power to give effect to these arrangements in section 5 of the European Union (Withdrawal Agreement) Act 2020, and that was good enough for the Supreme Court (at [108]).

 

For all of the attention devoted to Allister, perhaps the more significant recent decision is that of the Northern Ireland High Court in Rooney. Here, the Court found that efforts by the DUP’s Minister for Agriculture, Edwin Poots, to prevent the imposition of any new checks, required by the Official Controls Regulation (built into the Protocol, because Northern Ireland was now the boundary point for the EU Single Market for goods), on goods movements from Great Britain to Northern Ireland to be unlawful.  

 

The Minister, and his department within the Northern Ireland Executive, was subject to a statutory obligation under section 7A of the European Union (Withdrawal) Act 2018 to implement the checks on goods required by the Protocol.  As Colton J bluntly asserted, at [179]: ‘the UK is not to be treated as a unitary state for the purposes of OCR checks coming from GB into NI. This textual analysis is entirely consistent with the purpose, intention and objective of the Protocol itself’. This decision is the product of Allister (indeed, the Northern Ireland Court of Appeal’s reasoning in Allister, which the Supreme Court affirms, is quoted extensively in the decision). This marks the reality of parliamentary sovereignty as recognised in Allister. The UK’s own internal market can be abridged by special arrangements put in place for Northern Ireland where Parliament has accepted this state of affairs. And the courts are clear that this is what happened in 2020.

 

In the aftermath of the Rooney judgment, the UK Government laid down Regulations to authorise the infrastructure necessary to fulfil the OCR commitments, providing an opportunity to build trust amid the ongoing talks over the Protocol. We appear to stand on the cusp of a deal being agreed over the mitigation of the Protocol’s terms. Under the leaked details, a differentiated approach for checks on goods bound from Great Britain to Northern Ireland (as opposed to those moving on to Ireland, and with it the wider EU Single Market) will allow goods regulations to be altered in Great Britain without increasing barriers to trade across the Irish Sea. It will remain a counter-factual scenario whether substantially the same terms could have been reached through the Withdrawal Agreement’s Committee processes. Instead, the same high-tension approach that has characterised the whole Brexit process has carried on into the spat over the Protocol’s implementation, with disastrous consequences for the workability of power-sharing in Northern Ireland.  Maybe we just like the misery. For all the emphasis on brinkmanship, however, this progress has only been made after the UK fulfilled data sharing commitments on goods movements across the Irish sea which were the logical precondition of a more risk-based approach to managing the Protocol’s trade arrangements. Other courts are being left to operate Northern Ireland’s new arrangements in ways that the desiccated reasoning in Allister only hints at.

 

But perhaps this is where the real significance of the Allister decision comes in. Having spent two years whipping up Unionist concerns over the Protocol’s impact on the 1998 Agreement to aid its Protocol stand off with the EU, the UK Government can use the handily-timed judgment to face down any Unionist concerns about the deal. In the weeks ahead we are certain to hear that the Protocol is, and always has been, entirely compatible with the constitutional order. And all that will be left is the impression that Conservative ministers are taking advantage of the Allister litigants. None of which, of course, is likely to make the restoration of power sharing any more likely in the near future, which is very much the collateral damage of this mode of EU-UK relations. Just before the case was decided, the Northern Ireland Office snuck out the news that the Secretary of State would not be calling fresh Assembly elections and that the current form of quasi-Direct Rule would be continued. Whether they like the peculiar misery of dysfunctional governance or not, the people of Northern Ireland would appear to be stuck with it.  

 

The new EU Resettlement Framework: the Ugly Duckling of the EU asylum acquis?

Emiliya Bratanova van Harten, PhD candidate, Lund University

Photo credit: Voice of America

Many may have been surprised by the deal struck between the European Parliament and the Council of the EU on key migration and asylum instruments on 15 December 2022. More concretely, these are the Reception Conditions Directive and the Resettlement Framework Regulation (the Regulation, the Framework). While this development is welcome in view of the six-year delay in the reform of the Common European Asylum System, it also raises some important questions. This post focuses on the EU Resettlement Framework, as an analysis of some aspects of the Reception Conditions Directive is already available here.

In light of the agreement reached on the EU Resettlement Framework, the main question pertains to the place of legal pathways in the common European asylum space (understood both as acquis and as a sui generis political union), characterized by a focus on externalization. In its policy document entitled “Towards an operational strategy for more effective returns” of 24 January 2023, for example, the EU Commission states that “[a]n effective and common EU system for returns […] can promote safe legal pathways”. Therefore, this post aims to analyze the new EU Resettlement Framework from the perspective of its potential to improve the access to safety and rights of people in need of international protection. Furthermore, it also questions the role of third countries in the resettlement and humanitarian admission processes, as foreseen in the Regulation. To start with, it first provides an overview of the updated Resettlement Framework Regulation, followed by a comparison with the original proposal of 2016. It then asks the question of how the potential adoption of the said Regulation could expand the scope of EU law, if at all, in a way that beneficiaries of legal pathways could enjoy protection under the Charter of Fundamental Rights of the EU (CFREU).

Main components of the new EU Resettlement Framework

Object

The Framework is an instrument of a procedural nature. It sets up “a common procedure together with common eligibility criteria and refusal grounds for admission”, “as well as common principles regarding the status to be granted to admitted persons” (Para. 11). Importantly, it creates neither a “subjective right to request admission or to be admitted by a Member State”, nor a corresponding “obligation on Member States to admit a person under this Framework” (Para. 19; Arts. 1(2) and (2)a).

In addition to resettlement and humanitarian admission, the Regulation foresees the possibility for Member-States (MSs) to undertake emergency admission (Para. 15a; Art. 2). However, resettlement is recommended as the “primary type of admission” and “shall constitute not less than approximately 60% of the total number of the persons to be admitted”, whereas humanitarian and emergency admissions should be of a complementary nature (Para. 20a; Art. 7(2)a).

Scope

The proposed regulation establishes “a Union Resettlement and Humanitarian Admission Framework” which aims to complement “other legal pathways”. It “should offer the most vulnerable third-country nationals or stateless persons in need of international protection access to a durable solution in accordance with EU and national law” (Para. 1b). Therefore, in terms of its scope, the Framework does not address all types of legal pathways, as outlined in the UN Global Compact on Refugees, or GCR (Para. 95), but focuses specifically on resettlement and humanitarian admission, with a focus on vulnerability.

Objectives

Through its efforts to meet the global resettlement and humanitarian admission needs, the Framework aims to: 1. strengthen the Union’s partnership with third countries; 2. show solidarity with and help alleviate the pressure on those countries to which a large number of persons in need of international protection has been displaced; 3. foster those countries’ capacity to improve reception and international protection conditions; and 4. reduce irregular and dangerous onward movements of third-country nationals and stateless persons in need of international protection (Para. 10).

There is a certain degree of similarity between the objectives of the Framework and the objectives of the GCR, of which resettlement and complementary pathways, categorized under the generic term of legal pathways, are an integral part. These are: (i) ease pressures on host countries; (ii) enhance refugee self-reliance; (iii) expand access to third country solutions; and (iv) support conditions in countries of origin for return in safety and dignity (Para. 7). While legal pathways contribute to the first three, it is clear that the Framework has a stronger focus on third countries (which are sources of migration flows), and does not concern itself with the skills of the beneficiaries of legal pathways. On the contrary, one of the aims of resettlement and humanitarian admission, as per the Framework, is to deter irregular migration.

Procedure

The procedure shall consist of five stages: referral (from UNHCR in the case of resettlement, but optional in the case of humanitarian admission), identification, registration, assessment, conclusion on admission and granting of international protection or of humanitarian status under national law (in the case of humanitarian admission only) (Para. 13). The latter point raises the question of applicability of EU law if the protection status granted to the beneficiary of humanitarian admission is regulated under national law, to which I shall return later.

On a more concrete level, on the basis of a proposal by the Commission, the latter shall confer on the Council the implementing power to establish a two-year Union Resettlement and Humanitarian Admission Plan which would:

-          set the total number of persons to be admitted with a breakdown by type of admission (resettlement, humanitarian and emergency admission);

-          state the contributions of each MS in terms of total numbers to be admitted;

-          describe the specific group(s) of beneficiaries of legal pathways, as well as the regions or third countries from which admission would take place (Para. 21).

Importantly, the participation of Member States in the Framework is voluntary and it is up to Member States to define their priorities in terms of items 2 and 3 of the above Plan, which the Commission should have incorporated in its initial proposal to the Council (Para. 22; Art. 1(2)b). Ultimately, item 1 is drawn up on the basis of the respective breakdowns in items 2 and 3, which leaves the Commission with very limited negotiation powers.

The beneficiaries of resettlement and humanitarian admission could be granted international protection before or after arrival in the country of asylum, but the integration-related provisions contained in the Qualification Directive shall start applying upon their arrival to the country of asylum, reconfirming the territorial application of the asylum acquis (Para. 25). At the same time, MSs “should be able to make the participation in […] integration measures compulsory”, but “only if those integration measures are easily accessible, available and free of charge” (Para. 25a).

In order to be eligible, a person in need of international protection should meet a number of cumulative criteria (Art. 5). In order to be resettled, a candidate should qualify as a refugee or as a subsidiary protection status holder as per the Qualification Directive and fall within one of the vulnerability categories, which overlap in substance with the UNHCR resettlement submission categories, as per the UNHCR Resettlement Handbook (p. 243). For the purpose of humanitarian admission, in addition to the above requirements, the beneficiaries should be a family member to a third-country national or stateless person legally residing in the EU or an EU citizen (Art. 5(1)c). The definition of family members is broader than the one contained in the Family Reunification Directive, thus making humanitarian admission primarily a legal pathway for extended family members.

Additionally, the Regulation enlists grounds for refusing admission (Art. 6), which are a combination of the exclusion grounds contained in the Qualification Directive (Art. 12) and part of the risk assessment criteria enshrined in the Visa Code (Art. 21(c)(d)) and in the Schengen Borders Code (Art. 6(1)d and e). If a potential beneficiary of legal pathways falls within one of the latter two, they shall be barred from participating in resettlement and humanitarian admission programmes under the Regulation for a period of 3 years. In addition, there is another list of factors which may be a ground for admission refusal which includes, among others, people who in the past 3 years have refused participation in resettlement or humanitarian admission or have withdrawn their consent; who refuse to participate in a pre-departure orientation programme (on the scope of the programme, see Art. 10(7)c); or “persons in relation to whom Member State cannot provide adequate support that the person needs on the basis of his or her vulnerability” (Para. 6(2)bc).

At the same time, as mentioned, the participating Member States do not have an obligation to admit people in need of international protection falling within the categories above, but instead “may give preference to third-country nationals or stateless persons: 1. with family links with third-country nationals or stateless persons or Union citizens legally residing in a Member State; 2. with demonstrated social links or other characteristics that can facilitate integration in the Member State conducting the admission procedure, including language skills or previous residence; and 3. with particular protection needs or vulnerabilities” (Art. 10(1)a). This discrepancy is telling of the place the potential beneficiary occupies in the admission process: they need to fulfil many eligibility criteria, but MSs may give preference to other criteria (which are integration-related), and are not bound by a requirement to select persons with family links or even with vulnerabilities.

Rights of individual beneficiaries of legal pathways

The beneficiaries have many obligations and very few rights. The referral and matching procedure exemplifies this point aptly. As mentioned, within resettlement, UNHCR makes the referral to the Member State. However, the process of referral of beneficiaries of humanitarian admission does not look as streamlined as in the case of resettlement (Art. 10(1)a). In that case, Member States may request the UNHCR, the European Union Asylum Agency or another relevant international body to refer to them third-country nationals or stateless persons, but may theoretically also identify them themselves. The match between a person in need of international protection and the country X may be contingent on family links and social links, including language skills and previous residence (Art. 10(1)c), but in the absence thereof, the matching process seems rather random. People in need of international protection do not have a say in the selection process and if they do not provide or withdraw their consent to be resettled to a country X, they may forgo their possibility to find a third country solution in the next 3 years. Furthermore, they need to fall within certain categories of people in order to be eligible (to be in need of international protection, to have a vulnerability and family links in the case of humanitarian admission), but they may be selected on the basis of their integration potential, instead. If they do not participate in a pre-departure orientation programme, this may be a rejection ground in the following 3 years.

The above overview manifests the unequal relationship between MSs and beneficiaries of resettlement and humanitarian admission. While the participation of both parties is voluntary, under the updated Regulation, the Member States are allowed to relinquish most of their procedural obligations, e.g. exceeding the processing deadlines is not sanctioned; the observance of substantive provisions is discretionary, e.g. Member States shall provide pre-departure orientation programmes whenever feasible; and the discontinuation of an admission process on the basis of the lack of capacity to cater for the special needs of vulnerable beneficiaries does not give rise to a corresponding obligation of the Member State, which has chosen to participate in legal pathways schemes, to increase its insufficient capacity.

The role of third countries in the admission processes

Finally, the Regulation does not elaborate on the role of the third countries in resettlement and humanitarian admission processes. In the section on Operational cooperation, the Regulation clarifies that Member States “may decide to appoint liaison officers in third countries” (Art. 12(1)). The broad discretion awarded to Member States in this process is surprising given the recognition that third countries are responsible for exit procedures (Art. 10(7)b). It seems that the Framework foresees that the only cooperation with third countries shall be mediated by the European Union Asylum Agency (EUAA) (Art. 12(2)). However, as per the EUAA Regulation, “[t]he Agency may carry out such cooperation [with third countries] within the framework of working arrangements concluded with those authorities in accordance with Union law and policy”. (Art. 35(2)). It is in these arrangements that the responsibilities and role of the third country shall be clarified. However, it seems quite difficult, if not impossible, to see how the EU Resettlement Framework could achieve its initially stated objective to strengthen the Union’s partnership with third countries without the active engagement of these third countries in the said processes. This is surprising, as legally speaking the EU has the legal competence to engage third countries in asylum matters by way of international agreements: an approach that would be more perceptive of incorporating the interests of these third countries as partners, and not only as recipients of EU measures.

The progress made: the initial proposal for an EU Resettlement Framework

The initial proposal for an EU Resettlement Framework was put forward in 2016 as part of the proposal to reform the Common European Asylum System. Even though it mentions humanitarian admission a few times, by reference to previous practice such as the Voluntary Humanitarian Admission Scheme with Turkey of 2015, the focus of the Framework is mostly on resettlement. Therefore, the new version had its scope expanded as part of the negotiation processes leading up to the agreement of 2022.

In terms of its structure, the proposal has a much more detailed preamble which does not only elaborate on the context which led to its drafting, but also puts forward the legal basis of the draft, lays out a justification of the choice of instrument (regulation), provides links to the EU law principles of subsidiarity, proportionality and fundamental rights, and explores budgetary matters. Since one of the legal grounds of the Framework is “partnership and cooperation with third countries” (Art. 78(2)g, TFEU), alongside “common procedures” (Art. 78(2)d, TFEU), the part on cooperation with third countries is much more detailed, e.g. describing the interlinkages between resettlement and Partnership Frameworks with third countries. Very concretely, the link between cooperation with third countries and resettlement is summarized as follows: the choice of the region or countries from which resettlement shall take place will depend on the “third countries’ effective cooperation with the Union in the area of migration and asylum”, where “such cooperation should be reflected in terms of the third country's efforts to reduce the number of third-country nationals or stateless persons irregularly crossing the Union's border from its territory, their cooperation with the Union on readmission and return of third-country nationals or stateless persons irregularly staying in the territory of the Member States” (cf. Art. 4(c)(d)). The draft explicitly refers to the delegated powers to the Commission under Art. 290, TFEU, to adopt “non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act”, determining the role of third countries in the resettlement process.

While the objectives of the initial and updated drafts are quite similar, there is an important difference in the scope of the proposal of 2016. Resettlement is defined as encompassing not only people in need of international protection who have left their countries of origin, but also those displaced “within their country of nationality” (Art. 2). The draft does not elaborate on this choice of personal scope. In terms of eligibility, the Regulation also gives priority to expanded vulnerability criteria (socio-economic vulnerability in addition to UNHCR resettlement submission categories), in addition to family links.

The exclusion grounds are also broader in scope compared to the updated version. Further to the ones explained above, the initial draft Framework introduces a prima facie application of some of the exclusion grounds, which is not further defined (Art. 6(2)). Moreover, it specifies that “[p]ersons who have irregularly entered, irregularly stayed in, or attempted to irregularly enter into the territory of the Member States during the last five years prior to resettlement shall also be excluded” (cf. Art. 6(1)f).

In the old version one sees much more clearly the link between the introduction of legal pathways and the efforts to reduce irregular migration through cooperation with third countries, which has been diluted in the current updated version. Finally, unlike the new version, the old proposal introduced two types of resettlement procedures: an ordinary (whereby an assessment of the need for international protection is done in the country of asylum or of origin) (Art. 10) and an expedited one (whereby an initial assessment of the protection needs is done in the country of asylum or of origin, but the main assessment is done in the country of asylum) (Art. 11). The level of security checks is the same for the two procedures. As regards the role of the beneficiary of resettlement in the whole process, it is quite minimalistic, and devoid of rights – a similarity to the updated Framework.

Analysis: fundamental rights protection of beneficiaries of legal pathways?

The above overview of the processes foreseen in the EU Resettlement Framework points to an unequal relationship between MSs and beneficiaries of legal pathways in favour of the former. At the same time the updated Framework explicitly refers to the CFREU:

“This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and should therefore be applied in a manner consistent with these rights and principles, including as regards the rights of the child, the right to respect for family life and the general principle of non-discrimination.” (Para. 33)

Therefore, this section poses the question of the impact of the exercise of EU law in the area of legal pathways on the protection of the fundamental rights of individual beneficiaries, more concretely through an analysis of the applicability of the CFREU. It asks, which other rights and principles of the CFREU could be applicable in the context of legal pathways, in addition to those explicitly referred to in the quote above?

Zieck and de Boer have already analyzed the position of the refugee in the process of resettlement as totally devoid of human rights protection in the absence of an EU Resettlement Framework in force. In 2018, the Court of Justice of the European Union held that EU law, and the CFREU respectively, does not apply in situations where applicants in need of international protection would apply for a visa with a limited territorial validity as per Art. 25 of the Visa Code, as long-stay visas are governed by national law only (X and X v Belgium C-638/16 PPU, 7 March 2017, para 44). The EU Resettlement Framework does not specify what type of visa should be issued to beneficiaries of legal pathways. It limits itself to the “soft” obligation for MSs to “offer, where necessary, to make travel arrangements […], and that offer shall include, where necessary, the facilitation of exit procedures in the third country forward” (Art. 10(7)b). However, it can be deduced that in the case of a positive assessment of protection grounds prior to admission to the country of asylum, beneficiaries shall be issued a residence permit as per Art. 24 of the Qualification Directive. However, as mentioned, the content of international protection does not have an extraterritorial application. Beneficiaries of humanitarian admission who are issued a humanitarian status under national law would theoretically enjoy less protection than the former category, as they are not protected by EU law fundamental rights, ensuing from the application of the Qualification Directive.

However, with the adoption of the Framework, it is clear that EU law and the CFREU would apply in the context of resettlement and humanitarian admission. It is relevant then to ask the question of which provisions of the CFREU would apply in what parts of the legal pathway process. Apart from the CFREU provisions referred to in the Framework, namely, the rights of the child (Art. 24), the right to respect for family life (Art. 7) and the general principle of non-discrimination (Art. 21), and since the Framework is primarily of a procedural character, the application of Art. 47 on the right to an effective remedy and to a fair trial and Art. 41 on the right to good administration seem to be of crucial importance. However, as beneficiaries do not enjoy a right to a legal pathway, their right to an effective remedy could apply to a procedure which the MSs is obliged to set up and perform in a certain way and within a certain deadline.

The MSs have the following obligations as per the Framework: they “shall assess whether those third-country nationals or stateless persons fall within the scope of the Union Resettlement and Humanitarian Admission Plan”, whether they are eligible and do not fall in any of the refusal grounds (Art. 10(1)a and Art. 10(3)). They shall also provide information in an accessible, clear and intelligible way in a language the beneficiary understands (Art. 10(2)ba). Despite the set deadlines for admission processing (7+3 months, Art. 10(4)), and for the emergency procedure (1 month, Art. 10(-4a)), the Regulation allows for a discontinuation of the admission procedure in cases where the Member State “is not able to respect the time limits […] for reasons beyond their control” (Art. 10(4)a). Finally the obligation set out in Art. 10(7)bc for Member States to “make every effort to ensure entry to its territory as soon as possible and not later than twelve months from the date of the conclusion” stage is not very stringent either.

However, could potential beneficiaries appeal a negative assessment of their case, when they neither have a right to a legal pathway, nor have applied for it (but have merely consented to it)? What they could do at most would be to challenge an assessment outcome on the basis of a claim on procedural fault grounds (e.g. failure on the part of the Member State to provide the necessary information in the required way). Therefore, in light of settled case-law of the CJEU, when a decision refusing admission is issued, compliance with Art. 47 of the CFREU “requires the Member States to provide for an appeal procedure against such decisions, the procedural rules of which are a matter for the legal order of each Member State, in conformity with the principles of equivalence and effectiveness, and that procedure must, at a certain stage, guarantee a judicial appeal” (MA judgment, para 46).

Additionally, the principle of good administration enshrined in Art. 41 CFREU, includes “[t]he right to be heard [which] guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely”, as well as a requirement for “the authorities to pay due attention to the observations thus submitted by the person concerned” (MM judgment, paras 87-88). Therefore, Member States are required to observe this right “even where the applicable legislation does not expressly provide for such a procedural requirement”, as in the case in point (MM judgment, para 86).

Conclusion

The current analysis of the updated draft of the EU Resettlement Framework shows that, compared to its predecessor of 2016, the version of 2022 is a much more diluted legal instrument in terms of the degree of establishing a “common approach to safe and legal arrival in the Union for persons in need of international protection” (EU Resettlement Framework, 2022, Para. 6). At the same time, it envisions some lighter sanctions for beneficiaries of legal pathways who infringe the established admission procedures, and diminishes the role of third countries, thus making the link between legal pathways and the reduction of irregular migration, with the collaboration of third countries, less conspicuous and reproachable from a human rights law perspective, especially where these third countries may have a poorer human rights record. It shows that Member States, voluntarily participating in resettlement and humanitarian admission programmes, have very few obligations towards the beneficiaries of legal pathways. This raises the question of the benefit of adopting a “toothless” regulation (almost entirely) devoid of a binding power. In the end, though, bringing legal pathways within the ambit of EU law would likely have some (albeit limited) benefit for the protection of the rights of people in need of international protection, because now they will be able to draw on the protection of fundamental rights and principles enshrined in the CFREU. Once the EU Resettlement Framework Regulation becomes part of the EU asylum acquis, eventually, it may have the potential to prove that there is beauty even in imperfection.