No surprises here! What is discretionary remains discretionary in the CJEU’s first judgment on temporary protection

 

 

Dr Meltem Ineli Ciger, Associate Professor, Suleyman Demirel University

 

Photo credit: Francisco Anzola, via Wikimedia Commons

 

On 19 December 2024, the Court of Justice of the European Union gave its judgment in Joined cases C-244/24 and C-290/24 Kaduna. This is the first judgment delivered by the Court on the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive- TPD) and its application by the Member States towards persons forcibly displaced from Ukraine. The judgment clarifies important issues concerning the application of Article 7(1) of the Temporary Protection Directive which enables Member States to extend temporary protection to additional groups besides those covered by the Council decision triggering temporary protection, provided that those additional groups are displaced for the same reasons and from the same country or region of origin as those covered by the Council decision. It further answers crucial questions on the termination of the temporary protection granted to persons benefitting from temporary protection who does not fall within the scope of Article 2(1) and 2(2) of the Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine i.e. persons who were holding temporary residence permits in Ukraine and the lawfulness of the return decisions adopted in their regard.

 

Who is eligible for temporary protection status in the EU?

 

First, let me remind you of the eligibility criteria for temporary protection in the EU. When the Temporary Protection Directive is activated, the Council decides which groups of displaced persons qualify for the temporary protection status in the EU, as per Article 5 of the Directive. The Council did this by adopting the Implementing Decision (EU) 2022/382 on 4 March 2022. According to Article 2(1) of the Implementing Decision, the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date, are eligible for temporary protection:

 

-       Ukrainian nationals residing in Ukraine before 24 February 2022 and their family members; and

-       stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022, and their family members.

 

Besides the outlined groups, according to Article 2(2) of the Implementing Decision, Member States should grant either temporary protection or a national protection status to stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.  

 

There are also persons fleeing Ukraine who can be granted temporary protection at the discretion of the Member States. As per Article 2(3), Member States can grant temporary protection status to “other persons who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin.” This is in line with Article 7 of the TPD which allows Member States to extend temporary protection to additional displaced persons from the same region, provided they promptly notify the Council and Commission. In the judgment (para 94, 100), Article 2(1) and Article (2) of the Implementing Decision are defined as mandatory temporary protection clauses whereas, temporary protection granted on the basis of Article 2(3) of the Implementing Decision or Article 7 of the TPD is referred to as optional temporary protection. Member States such as Finland, Portugal and Spain not just the Netherlands made use of Article 2(3) of the Implementing Decision and some others such as Germany and the Czech Republic followed Article 7 of the Temporary Protection Directive and granted optional temporary protection to various groups fleeing Ukraine in the beginning of the mass influx situation.

 

Cases C-244/24 and C-290/24

 

Both cases referred to the CJEU concern third-country nationals holding temporary resident permits in Ukraine who have been granted temporary protection in the Netherlands despite not falling within Articles 2(1) and (2) of the Council Implementing Decision. In Case C-244/24, the CJEU examined the legal implications of temporary protection for a Nigerian national (P) who fled Ukraine to the Netherlands following the Russian invasion. P held a temporary residence permit in Ukraine until January 2023 and was granted temporary protection by the Dutch authorities without assessing his ability to return to his country of origin. P applied for asylum in August 2022, but the Dutch authorities did not decide on the application in August 2023. Simultaneously, his temporary protection was terminated with effect from 4 September 2023 and he was issued a return decision on 7 February 2024. P challenged this decision, arguing it was premature and violated his rights under EU law, specifically since the Implementing Decision (EU) 2023/2409 extended temporary protection until 4 March 2025. One should also note that, as of December 2024, the temporary protection regime is extended until 4 March 2026 with the Council Implementing Decision (EU) 2024/1836 of 25 June 2024.

 

In Case C-244/24, the Court was asked whether Article 6 of the Return Directive prohibits a Member State from adopting a return decision against a person who still has lawful residence under temporary protection. It further inquired whether it makes a difference if the return decision specifies that it will only take effect after the legal stay ends. Secondly, the Court was asked to clarify whether Article 1 of Council Implementing Decision 2023/2409, which extended EU-wide temporary protection until 4 March 2025, also applies to optional temporary protection status holders even if the Member State later decided to revoke their temporary protection before this extension (para 85).

 

In Case C-290/24, the CJEU also has been asked about the scope of optional temporary protection beneficiary categories and the implications of its cessation by Member States. The case concerned three third-country nationals (AI, ZY, and BG) who held temporary residence permits in Ukraine on 24 February 2022. They fled to the Netherlands after the Russian invasion, where they were granted temporary protection under Dutch legislation without assessing their ability to return safely to their countries of origin. However, on 7 February 2024, the Dutch State Secretary issued return decisions for all three individuals, requiring them to leave the EU within four weeks of 4 March 2024. The case reached the Dutch Council of State after conflicting lower court rulings. The Council of State referred the matter to the CJEU, raising questions about the duration and termination of temporary protection for those who fall within the optional temporary protection categories. The referred question was whether the Temporary Protection Directive requires optional temporary protection to continue during EU-wide extensions, or can a Member State terminate such optional protection early (para 93). The President of the Court decided to join these cases on 7 May 2024.

 

Questions addressed by the CJEU and the overview of the judgment

 

1.     Can temporary residence permit holders who fled Ukraine shortly before 24 February 2022 be granted temporary protection on the basis of Article 7 of the Temporary Protection Directive regardless of whether they could return to their country or region of origin in safe and sustainable conditions? (para 93-101)

 

The Court answered this question positively. It noted that Article 7(1) of the Temporary Protection Directive allows Member States to extend temporary protection to categories of persons not designated by the Council, provided they fled for the same reasons and from the same region or country. The Netherlands granted temporary protection to all holders of a Ukrainian residence permit, including temporary ones that were valid on 23 February 2022 and likely to have left Ukraine after 26 November 2021 (90 days before the invasion).  The Court confirms this is in line with the Council Implementing Decision 2022/382 recital 14, which encourages extending protection to those who fled shortly before 24 February 2022 (para 99) and partially also corresponds to Article 2(3) of the Council Implementing Decision.

 

2.     When can the Member States terminate optional temporary protection granted on the basis of Article 7 of the Temporary Protection Directive? (para 102-135)

 

To address this question, the Court first clarified that the temporary protection granted under Article 7(1) of the TPD does not result from an obligation laid down by EU law but from the autonomous decision of a Member State (para 111). According to the Court, Article 7 of the Directive gives Member States considerable discretion in determining who qualifies for temporary protection and for how long. Moreover, Article 7 aims to encourage Member States to broaden the categories of displaced persons eligible for temporary protection, thereby lightening the pressure on national asylum systems and preventing their collapse. The Court considered the Netherlands making use of Article 7 promoted these objectives despite limiting the protection period shorter than that of mandatory temporary protection. Based on this reasoning, the Court clarified that Member States are not required to terminate temporary protection for individuals granted protection under Article 7 at the same time as those covered by the mandatory clauses set out in Articles 2(1) and 2(2) of the Implementing Decision. This is also in line with the AG opinion (para 121, 122).

 

The Court noted Article 7(1) grants Member States the discretion to establish and withdraw temporary protection status for optional groups, as long as these actions occur within the timeframe during which temporary protection regime is in force as per the Council decisions. Moreover, the Court emphasised that a Member State may terminate temporary protection status for optional groups prior to the date on which the temporary protection regime is terminated by the Council, provided such action does not undermine the objectives or effectiveness of the Temporary Protection Directive and complies with the general principles of EU law including the principles of the protection of legitimate expectations and legal certainty. It is also noteworthy that, in interpreting a key criterion for applying and terminating temporary protection for optional categories, the objectives of the Temporary Protection Directive were identified similarly by the AG and the Court. Whilst, AG noted safeguarding of the proper functioning of the asylum systems of the Member States as the objective of the TPD, the Court identified it as “to preserve the proper functioning of the system of international protection within the Member States” (para 125).

The Court emphasised that persons enjoying optional temporary protection should be given a right to apply for international protection during or after the termination of the temporary protection regime and their applications must be decided.  

 

3.     Can a Member State issue a return decision for a temporary protection beneficiary even if the return decision specifies that it will only take effect after the temporary protection regime ends? (para 136-158)

 

The Court noted that Article 6 of the Return Directive only applies to individuals who are staying illegally in a Member State thus, as long as an individual is legally residing under optional temporary protection, a return decision cannot be issued. This restriction applies even if the return decision specifies that it will only take effect after the individual’s legal residence ends. The Court stressed that issuing a return decision prematurely undermines procedural safeguards and fails to respect the legal rights of individuals while their residence is still lawful. Moreover, the Court also noted that beneficiaries of optional temporary protection must enjoy the same rights as those covered under mandatory temporary protection, including a residence permit ensuring their legal stay until protection is formally withdrawn. Until their protection status ends, they remain lawful residents, and return decisions are therefore inadmissible. Finally, the Court concluded that even if a Member State seeks to prepare for the end of optional temporary protection by issuing a return decision in advance, such action violates EU law.  

 

Analysis

 

As the title of this post suggests, the judgment and the way the Court addressed the outlined questions are not surprising. The decision also mostly aligns with the opinion of the AG.

  

Temporary protection, unlike international protection, is a time-limited, exceptional and discretionary protection framework only to be applied in mass influx situations. While the Council determines the categories of beneficiaries and the duration of the temporary protection regime within the EU, the Court confirmed that Member States retain discretion to decide which additional groups, beyond those identified by the Council as ‘mandatory categories’, may benefit from temporary protection on the basis of Article 7 and for how long they may enjoy it. However, as the Court underlined, this discretion is not without limits. The following principles must be observed when determining the termination of temporary protection for optional groups:

 

-       Member States may independently terminate temporary protection for optional groups before the official end date of the EU-wide temporary protection regime established by the Council. However, such actions must comply with EU principles, including legal certainty, and must not undermine the objectives or effectiveness of the Temporary Protection Directive.

-       Temporary protection beneficiaries should be able to apply for international protection during or after the end of the temporary protection and asylum applications must be processed.

-       All temporary protection beneficiaries irrespective of falling into the mandatory or optional category must enjoy the same rights and this includes access to a residence permit allowing legal stay until their temporary protection is formally withdrawn.

-       Return decisions can only be issued to individuals who are staying illegally in a Member State. While beneficiaries of optional temporary protection remain lawful residents, issuing return decisions, even those with a delayed effect, may violate EU law.

According to the Commission, as of the end of October 2024, 4.2 million people fleeing Ukraine due to the Russian war of aggression were under temporary protection in EU countries. Of these, 98.3% were Ukrainian nationals. This indicates that the judgment concerns a very small percentage of individuals granted temporary protection in the EU and only a handful of Member States which broadened the scope of the temporary protection regime. Nevertheless, the Court’s interpretation of Article 6 of the Return Directive raises important points that may become increasingly relevant in the future, particularly when the Council decides to terminate temporary protection for Ukrainians. The Court clearly established that no return decisions are to be adopted before the termination of the temporary protection regime.  It is important for all temporary protection status holders to be given an opportunity to claim asylum and their applications are examined and decided before their removal.

 

Although the legal reasoning of the Court in this judgment, at least in my opinion, is justified, there is an interesting point: both AG opinion (para 27-34, 112) and the judgment (para 65-66) mention Article 4 and the extension of the temporary protection until 2026 as a matter of fact, but none of these texts questions or engages with the question whether the extension of temporary protection is in line with Article 4 of the TPD and EU law. As an author who argued that the extension of the temporary protection until 2026, ie beyond three years, contravenes Article 4 of the Temporary Protection Directive, it is indeed interesting that both the Court and the Advocate-General did not discuss the legality of such an extension but merely acknowledged the existence of it. Perhaps this is a question which should be referred to the CJEU in the future.

 

 

 

The right to perform secondary movements under international refugee law

 

 

Paolo Biondi, EU Asylum Agency

 

Photo credit: Ggia, via Wikimedia Commons

 

 

Introduction

 

The 1951 Refugee Convention is a pivotal document in international refugee protection, outlining the rights of asylum seekers and the responsibilities of states. Central to this convention is Article 31(1), which addresses the non-penalization of refugees for illegal entry or presence:

 

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence

 

Traditionally viewed as a provision ensuring refugees are not penalised for illegal entry or presence if they present themselves promptly to authorities and have good cause for their illegal entry or presence, in my opinion Article 31(1) has broader implications. This blog post explores these implications, highlighting how Article 31(1) and related provisions within International Refugee Law (IRL) and International Human Rights Law (IHRL) should be interpreted to uphold human rights standards. By examining the negotiating history, authoritative interpretations and jurisprudential decisions, it suggests an unorthodox interpretation of Article 31 pointing to a wider interpretation of the right to perform secondary movements where effective compliance with human rights is essential for legitimately allocating of responsibility for asylum applications.

 

Understanding the Orthodox Interpretation of Article 31

 

Article 31(1) aims to address the practical realities of flight from persecution, acknowledging that refugees may have no choice but to enter or remain in a country illegally but, most importantly, implicitly regulates the right to perform secondary movements. During the drafting process, states, particularly France, expressed concerns about ensuring that refugees who had already found protection in one country would not move freely to others without adherence to border formalities. This debate underscored the tension between the humanitarian protection of refugees and states' sovereign rights to control their borders and regulate the distribution of refugees (responsibility sharing).

 

While Article 31(1) prohibits the imposition of penalties on refugees for their illegal entry or presence, it must be read alongside Article 32, which restricts protection from expulsion to refugees lawfully in the territory. This distinction highlights that the scope of penalties under Article 31(1) does not necessarily encompass removal to another country, as this could fall under the separate regime of expulsion under Article 32. Recent jurisprudence, such as rulings on the UK's Rwanda policy, suggests that removal to a third country may not always constitute a penalty under Article 31(1), provided the destination country is deemed capable of providing effective protection. However, international and regional jurisprudence also supports the view that measures resulting in effective penalties, such as removal without substantive guarantees of protection or the risk of refoulement, fall within the ambit of Article 31(1). The principle of non-penalization ensures that refugees are not disadvantaged due to the manner of their arrival, particularly when they lack viable alternatives to reach safety.

 

Two critical elements in the interpretation of Article 31(1) are the concepts of effective protection and meaningful connection. Effective protection refers to conditions in a country that ensure refugees' safety and access to basic human rights. Meaningful connection (e.g. family links) emphasize the importance of a reasonable connection with the transit or destination country. Effective protection is further elucidated in Article 33(1) of the Refugee Convention, which prohibits refoulement—returning refugees to territories where their life or freedom would be threatened. This principle extends beyond the country of origin to any territory where such risks exist, underscoring the necessity of ensuring that refugees are not merely safe but can live free from fear of persecution or other serious harm.

 

During the 1951 Convention negotiations, while Norway’s proposed amendment of Article 31(1)—replacing "coming directly" from a country of persecution with "any territory" where life or freedom is threatened—was not accepted, this rejection does not negate the principle's evolution. Subsequent jurisprudence and interpretations, such as those from the ECtHR, CJEU and the UNHCR, have expanded the understanding of effective protection (e.g. Dublin jurisprudence further below). These developments in essence reflect an acknowledgment that threats in transit countries or deficiencies in protection standards can also justify secondary movements. Yet, already during the negotiations. UNHCR stressed that transit and secondary movements are sometimes unavoidable due to the challenges refugees face in initial asylum countries. Historical examples, such as the flight of refugees during World War II informed this perspective. The experience of UNHCR officials (including the United Nations High Commissioner for Refugees Dr Van Heuven Goedhart) participating in the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, who themselves had to transit through multiple countries during their own escapes, highlighted the practical realities faced by refugees.

 

Thus, when refugees seek effective protection or a meaningful connection in a transit or destination country, such as family reunification among other compelling reasons, they may indeed have "good causes" for secondary movements under a modern interpretation of Article 31(1). This aligns with the broader human rights framework that underpins the Refugee Convention, ensuring that its protections remain relevant to contemporary challenges. While the effective protection and meaningful connection terms do not appear explicitly in the text of Article 31, they are crucial because they underpin the broader principles and objectives of the 1951 Refugee Convention.

 

 

 

Secondary Movements and Effective Protection: An Evolving Legal Framework

 

This section argues for a broader interpretation of "good cause" under Article 31(1) and the principle of non-refoulement under Article 33(1) of the 1951 Refugee Convention. It emphasizes that secondary movements can be justified by systemic deficiencies in transit countries, a lack of effective protection, or strong connections, such as family ties, with a destination country. These interpretations align with the Convention's humanitarian purpose, which prioritizes refugees' fundamental rights over rigid procedural constraints.

 

The criterion of "good cause" for illegal entry under Article 31(1) has been a point of contention. Traditional interpretations often limit "good cause" to the manner of entry, focusing on immediate justifications such as the urgency of escape from persecution. However, scholars like Goodwin-Gill advocate for a broader understanding of this concept. According to Goodwin-Gill, "good cause" can extend to reasons such as the presence of family members in a specific country or other genuine links that justify secondary movements. His interpretation aligns with the principle that refugees should not be penalized for seeking effective protection or family reunification, even when this necessitates onward travel. This broader interpretation underscores the humanitarian objectives of the 1951 Refugee Convention, emphasizing that "good cause" should accommodate the complex realities refugees face when fleeing persecution and seeking protection.

 

UNHCR and recent international court rulings have reinforced this expansive view of "good cause" under Article 31(1). For instance, systemic deficiencies in asylum procedures in transit countries—such as those identified in Greece in 2009 during the M.S.S. v. Belgium and Greece case, and in Italy in 2011 with Tarakhel v. Switzerland — demonstrate how inadequate protection can justify secondary movements. These deficiencies are considered violations of human rights, as they fail to meet the minimum standards of effective protection, thereby necessitating the right to seek protection elsewhere. Additionally, the interpretation of non-refoulement has evolved to encompass broader threats beyond persecution as narrowly defined in the 1951 Refugee Convention. This includes situations of generalized violence, systemic oppression, and serious human rights violations, as recognized in both international and regional jurisprudence. Such an expansive approach ensures that refugees are shielded from threats to their life or freedom, whether arising from persecution, armed conflict, or other severe risks, thereby reinforcing the principles of protection enshrined in the Convention.

 

A similar interpretation was upheld in 2014 by the German Federal Constitutional Court (GFCC), which considered the interaction between safe third country practices and Article 31(1). In that context, the court, referencing M.S.S. v. Belgium and Greece, concluded that while Greece was designated as a "safe country" under German law, systemic deficiencies in its asylum procedures rendered it unsafe at the time of entry. These deficiencies exposed applicants to risks of inhumane and degrading treatment, justifying their secondary movements. This interpretation aligns with the reasoning in subsequent decisions by the CJEU, such as in Ibrahim, where the principle of effective protection under the Dublin Regulation was applied to recognize systemic deficiencies as undermining safety. These cases confirm that the right to perform secondary movements is not necessarily linked to "persecution" in a third country; instead, deficiencies in asylum procedures can represent "good cause" and a human rights violation, entitling the applicant to seek protection elsewhere.

 

The absence of protection in third countries fundamentally alters the nature of an asylum seekers journey. What may initially appear as an indirect flight can transform into a direct flight under Article 31(1) when inadequate protection in a transit country prolongs or exacerbates the risk of persecution or other serious harm. This interpretation reflects a broader understanding of the Convention’s purpose: either (a) "good cause" can trump the "coming directly" requirement, encompassing the need to avoid a lack of effective protection en route, or (b) "coming directly" must itself be understood in light of the Convention’s object and purpose, which would exclude transit through countries where effective protection is not available.

 

Such an interpretation aligns with universal rules of treaty interpretation under the Vienna Convention on the Law of Treaties, which emphasize that the object and purpose of a treaty must guide its application. Moreno Lax has argued that unilateral designations of responsibility under the 1951 Refugee Convention or the Dublin system for the application of the Safe Third Country (STC) concept “must be rejected when they merely provide for a deflection mechanism incompatible with the realization of the object and purpose of the Refugee Convention.” While Moreno Lax's critique primarily addresses procedural responsibility mechanisms, the underlying principle she highlights—the necessity of ensuring mechanisms serve the Convention’s purpose rather than undermining it—is adapted here to support the argument against penalizing refugees for secondary movements where effective protection is absent.

 

Similarly, Lord Justice Simon Brown, in R. v. Uxbridge Magistrates’ Court, acknowledged that differing state responses to asylum requests create a rational basis for refugees to exercise some choice in where to seek asylum. While he rejected the idea of unconditional freedom to choose the country of asylum—a stance that might align with concerns over "forum shopping"—his judgment also recognized that there is no obligation under the Refugee Convention requiring refugees to apply for asylum in the first country they enter. This interpretation underscores that the Convention does not preclude secondary movements, especially when linked to legitimate causes such as seeking effective protection or family reunification.

 

Effective protection within the context of Articles 31(1) and 33(1) is crucial. The concept revolves around ensuring that a state can offer genuine safety and uphold the basic human rights of refugees. This includes protection from refoulement, access to fair asylum procedures, and the absence of persecution or inhumane treatment. The Safe Third Country (STC) and First Country of Asylum (FCA) concepts are often invoked in discussions about refugee movements. However, the distinction between these two is largely theoretical. Both concepts require that the third country or the first country of asylum offers effective protection. This means that in the third country concerned, refugees must not be subjected to refoulement or face threats to their life or freedom. The adequacy of protection in the third country must be assessed to ensure compliance with these core principles, ensuring that refugees are not transferred to situations where their fundamental rights may be at risk.

 

Commentator Paul Weis, analyzing the travaux préparatoires of the 1951 Refugee Convention and Article 33(1), concluded that the words "in any manner whatsoever" indicate that Article 33(1) applies to non-admittance at the frontier. This interpretation underscores that an asylum seeker can claim protection under Article 33(1) if they fear persecution or if their physical safety or freedom is endangered in a country where they previously stayed, even before crossing the border. The non-refoulement applies universally, prohibiting rejection at the border in such cases.

 

This understanding is further supported by the absence in Article 33 of any requirement for lawful presence or explicit reference to illegal entry, distinguishing it from other provisions of the Convention, such as Article 31. The absence of such conditions highlights that the protection against refoulement applies broadly to all refugees, regardless of their mode of entry or presence. Other commentators such as Chetail agree with Weis, suggesting that protection against refoulement, grounded in positive obligations, may derive from the principle of non-refoulement itself. This principle obliges states to admit persons at immediate risk of fundamental rights violations, ensuring that non-admission does not have the same effect as refoulement.

 

While the 1951 Refugee Convention does not explicitly regulate access to asylum procedures or territory, the principle of non-refoulement inherently requires that refugees not be returned to situations where their life or freedom would be threatened. The refugee definition applies specifically to individuals outside their country of nationality. In contrast, IHRL imposes no such geographical limitation, and non-refoulement, from a human rights perspective, applies to any person under another state's effective control, regardless of location. While IRL and IHRL operate as distinct legal regimes, their objectives often intersect. For example, individuals may be protected from expulsion under human rights law without necessarily qualifying as refugees under the 1951 Refugee Convention. The extraterritorial application of the non-refoulement principle, recognized in both IRL and IHRL, extends states' obligations to prevent the return of individuals to harm, even when they are not within the state’s territory. This principle has been extensively developed in case law, particularly by the European Court of Human Rights (ECtHR) in cases such as Hirsi Jamaa v. Italy, where the Court confirmed that effective control triggers non-refoulement obligations.

 

 

Balancing 'Good Cause' and 'Coming Directly' Under Article 31(1)

 

This section expresses reservations about the 2017 UNHCR interpretation of "good cause" under Article 31(1) as narrowly focused on the nature of illegal entry, arguing that this view is inconsistent with the provision's negotiating history and broader judicial interpretations.

 

In 2017, UNHCR published a research paper that interprets the "good cause" criterion in Article 31(1) as primarily relating to the nature of illegal entry—specifically, the need to demonstrate a "good cause" for entering a country illegally. The publication argues that "the good cause requirement should not be used to rehearse arguments relating to safe third countries as these matters are examined under the ‘coming directly’ element." While this interpretation is plausible, it appears inconsistent with the negotiating history of Article 31(1) and with interpretations from international courts.

 

Authoritative figures, such as Goodwin-Gill, have challenged the conventional understanding of "good cause" in the context of irregular entry under Article 31(1). Goodwin-Gill argues that the "good causes" criterion should not be confined solely to the manner of illegal entry. Instead, it may encompass a broader range of reasons for seeking asylum in a particular country, including family reunification or systemic deficiencies in transit countries. These reasons reflect the Convention’s humanitarian purpose and recognize the complex realities refugees face during their flight to safety.

 

The relationship between "good cause" and "coming directly" has been a matter of debate. One interpretation is that these are separate, non-overlapping conditions, meaning "good cause" cannot override the "coming directly" requirement. However, according to me scholars like Goodwin-Gill argue that "good cause" should inform the application of "coming directly," allowing exceptions when transit countries fail to provide effective protection or there is no meaningful link. This perspective aligns with the Convention’s humanitarian objectives, ensuring that refugees are not penalized for seeking safety where protection was unavailable en route.

 

While Article 31(1) does not allocate responsibility for asylum applications, its principles shape the treatment of secondary movements. For example, family bonds or other relevant links in alternative destinations are recognized in regional frameworks, such as the EU’s Dublin Regulation, which prioritizes family links, and the "safe third country" concept, which requires a meaningful connection beyond mere transit. In 2020 in the FMS case the CJEU also clarified that mere transit cannot be intended as meaningful  connection for the purpose of STC concept application. These interpretations reinforce the need to assess secondary movements within a legal framework that respects refugees' rights. Most recently another key aspect was clarified in the CJEU judgment in Elliniko Symvoulio where it is established that if the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of the Asylum Procedures Directive (APD).

 

Judicial decisions, such as FMS, provide critical clarification on the application of "good cause" and "coming directly," supporting broader interpretations that prioritize refugee rights and systemic fairness. Such decisions are all the more important during a time EU Member States are exploring the possibility to remove the meaningful connection requirement from the newly adopted Asylum Procedure Regulation. In the same vein, Prof. Steve Peers critiques the revised Dublin rules for narrowing the scope and effectiveness of appeal rights, which, as he notes, marks a shift 'towards a purely intergovernmental framework' rather than one that individuals can effectively engage with to enforce their rights. This procedural limitation highlights the systemic barriers refugees face in seeking fair assessments, particularly in the context of systemic deficiencies in transit countries. His critique underscores the necessity of maintaining procedural safeguards to ensure fairness and uphold refugees' rights under Article 31(1). The FMS ruling aligns with the notion of "good cause" under Article 31(1), which advocates for flexibility and fairness in determining when secondary movements are justified. It supports the argument that a lack of substantive ties in a transit country may justify onward movement. The FMS case underscores the importance of individual assessments and procedural safeguards. This aligns with the broader goal of ensuring that Article 31(1) is applied in a way that prioritizes fairness and refugees' rights. While FMS primarily interprets EU law, it indirectly supports a broader understanding of "good cause" and "coming directly" by emphasizing meaningful connections and rejecting procedural shortcuts like reliance on mere transit.

 

 

 

Protecting Family Unity in the Context of APD and Dublin Regulation Interplay

 

Now, we turn to the interplay between EU asylum law and IRL, particularly how they address family unity, meaningful connections, and procedural safeguards in allocating responsibility for asylum seekers. The EU asylum system closely reflects the principles of IRL, especially those enshrined in the 1951 Refugee Convention. This alignment provides a valuable framework for examining how EU rules incorporate and interpret these international standards, with a particular focus on family links and responsibility allocation.

 

Article 38(2)(a) of APD stipulates that the application of the safe third country concept must consider a connection between the asylum seeker and the third country. This connection, which could include family ties, must be reasonable for the applicant to relocate to that country. The directive itself explicitly states that the presumption of safety in a third country can be rebutted by the applicant, emphasizing the importance of individual assessments to ensure access to asylum procedures. Misapplication of admissibility rules could unjustly deny access to appropriate asylum procedures, thereby impacting the applicant's fundamental rights.

 

The Dublin Regulation, referenced by Article 38 of the APD, assigns responsibility for examining asylum applications through a comparative test. This test prioritizes family links and other meaningful connections to determine the most suitable EU Member State to handle the asylum claim. However, the regulation also considers other factors, such as the first EU state of entry, which can play a significant role in responsibility allocation. According to EU law, family unity remains a crucial factor, and decisions should aim to preserve these ties wherever possible.

 

The application of the APD procedure, particularly the "safe third country" rule under Article 33(1), has been interpreted differently in recent case law. On 17 March 2016, the CJEU in the Mirza case addressed the interplay between the STC rule under Article 33 of the recast APD and the Dublin Regulation. The Court ruled that a Member State may apply the STC rule to declare an application inadmissible, even if it is not the Member State responsible for examining the claim under the Dublin Regulation. This judgment reflects an interpretation of the Dublin Regulation’s explicit provisions regarding STC rather than a general approach to inadmissibility.

 

While the Mirza judgment interprets EU law as it stands, in my view concerns remain about its implications for procedural fairness and fundamental rights. For example, the judgment permits Member States to invoke the STC rule without fully determining responsibility under the Dublin Regulation, which could undermine the structured allocation of responsibility designed to safeguard family unity and other meaningful connections. EXCOM Conclusion 15 emphasizes that asylum should first be requested in a state where the applicant has a connection, such as family ties, and this requires a comparative test, not a non-contextual application of inadmissibility rules. Similarly, Article 31(1) of the 1951 Refugee Convention recognizes family links as a "good cause" for onward movements, highlighting that strict and non-comparative procedures risk penalizing refugees contrary to international law.

 

In my opinion, the Mirza judgment illustrates a tension between procedural flexibility for Member States and the need for structured, rights-based responsibility allocation. While the judgment aligns with EU law’s textual framework, the absence of a comparative test in applying the STC rule risks decisions that fail to account for family unity or systemic deficiencies in protection. To strengthen procedural safeguards, inadmissibility decisions under Article 33(1) APD should ideally follow responsibility determinations under Article 3 of the Dublin Regulation. Although this sequencing is not explicitly required by the regulation, it reflects a normative approach that aligns better with the principles of family unity and effective protection embedded in both EU law (Fundamental Rights Charter) and IRL.

 

This cross-referencing aims not to override the Dublin responsibility criteria, principally to safeguard family unity (Art. 8 DRIII) criteria or the humanitarian clause (Art. 17 DRIII), which can and should be used to ensure family unity once a person gains access to the EU. The ECtHR has affirmed the proactive obligations under Article 8 ECHR in cases such as Senigo Longue and Tanda-Muzinga, which must be read in conjunction with the primacy of the Best Interests of the Child and the respect of family unity. This reiterates the positive duties of states to proactively and expeditiously comply with the procedural and substantive elements of Article 8 ECHR, both as an autonomous right and as part of an instrument of secondary legislation. Doing otherwise would undermine family unity (including for dependency reasons), with inadmissibility taking precedence over it.

 

Currently, it is possible for the principle of non-penalization under Article 31(1) of the 1951 Refugee Convention to be undermined in the EU context. Article 38(1)(e) of the recast APD allows an applicant to be sent to a third country outside the EU where there is a "possibility" to request refugee status. However, the directive requires that a connection between the applicant and the third country be established, as outlined in Article 38(2)(a). Case law further clarifies that mere transit through a third country is insufficient to meet this requirement, emphasizing the need for a meaningful connection.

 

Additionally, the Dublin Regulation governs responsibility allocation for examining asylum claims among EU Member States and does not directly apply to transfers to third countries under the APD. While the Dublin Regulation does not explicitly mandate a "comparative test," its criteria prioritize factors such as family unity and the applicant’s meaningful links to a Member State. A rigorous application of these principles ensures that inadmissibility decisions under Article 33(1) of the APD do not override the safeguards enshrined in the Dublin Regulation and EU asylum law as a whole.

 

 

Conclusion: Balancing Control and Protection

 

Article 31(1) of the 1951 Refugee Convention does not prohibit the diversion of asylum applications to third countries willing and able to provide effective protection, even in the absence of significant links to those countries. However, EXCOM Conclusion 15 and UNHCR guidelines emphasize that the principle of non-penalization under Article 31(1) limits such transfers when meaningful connections or effective protection are lacking. Justifications for secondary movements include insufficient protection in transit countries, refusal of protection, or strong family links in another state, which are recognized as "good cause" for onward movement.

 

A comparative test is necessary to evaluate the applicant’s connections to third countries versus their ties to other states, including within the EU under the Dublin Regulation. Effective protection, meaningful links, and family unity extend beyond non-refoulement, shaping a state's discretion in allocating responsibility for asylum claims. While Article 31(1) does not establish a positive obligation to admit or always justify secondary movements, it imposes constraints on measures that ignore these factors, as such restrictions may constitute penalties or harm integration prospects.

 

The interpretation of Article 31(1) requires a balance between state sovereignty and refugee protection. States have the right to control borders but must also honour international obligations, ensuring access to effective protection and family unity. Refugees should not face penalties for irregular entry or secondary movements driven by genuine humanitarian reasons. By applying Article 31(1) with sensitivity to these realities, states can uphold the 1951 Refugee Convention’s principles while maintaining humane and just asylum policies.

 

 

 

 

 

 

 

 

The CJEU ruling in Changu: ‘If I’ve said it once, I’ve said it a thousand times: the Return Directive in conjunction with the Charter of Fundamental Rights does not oblige EU Member States to grant a right to remain to irregularly staying migrants’

 

 

Alan Desmond, University of Leicester

Kevin Fredy Hinterberger, Austrian Federal Chamber of Labour

Photo credit: Luxufluxo, via Wikimedia Commons

 

Introduction

The 2008 Return Directive sets out common standards and procedures for removal of irregularly staying third-country nationals (TCNs) by all EU Member States, except for Ireland and Denmark, and by the four Schengen states outside the EU, namely, Iceland, Liechtenstein, Norway and Switzerland. Since the Directive’s entry into force in January 2009, it has been the subject of an increasing number of important CJEU rulings that clarify the scope and substance of safeguards for TCNs facing removal, ranging from the right to be heard prior to adoption of a return decision, to the maximum period of detention allowed under the Directive.

While the self-evident focus of the Directive is on removal of irregularly staying migrants, Article 6(4) of the Directive provides that, instead of issuing or enforcing a return decision, a state may ‘at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay’ to an irregularly staying TCN. The recent ruling of the CJEU in Case C‑352/23 (Changu) maintains the Court’s stance that no provision of the Return Directive can be interpreted as requiring a member state to grant a residence permit to a TCN staying irregularly on its territory. Article 6(4) has no mandatory character and simply provides Member States with an option ‘to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law, to third-country nationals who are staying illegally on their territory’ (para 67). In this blogpost, however, we argue that Member States have to choose between the return procedure or regularisation. Both options for the Member States are equal in nature to the extent that they have the effect of ending the irregular stay (Hinterberger 2023, pp 98-99).

Background to Case C‑352/23 Changu

The applicant was a TCN who had been residing in Bulgaria since 1996. He had unsuccessfully lodged several applications for international protection and had been the subject of return decisions, the first dated 26 September 2005 and another dated 9 August 2017, which had never been enforced. The CJEU noted that there was no indication that this failure to enforce was due to obstacles to their execution or on health or humanitarian grounds (para 34). During his lengthy residence in Bulgaria the applicant had received different criminal convictions. He claimed that ‘because of the legal vacuum’ surrounding his stay in Bulgaria, ‘he had not had access to either health insurance or medical care’ (para 22).

The most recent rejection of the applicant’s request for international protection, in 2022, was upheld by the Administrative Court in Sofia. The Court in Sofia noted, however, that during the considerable length of his stay in Bulgaria, the applicant did not have any identity document and was often deprived of the necessary safeguards to ensure a dignified standard of living, in breach of Article 14 of the Return Directive. Article 14(1) obliges Member States, inter alia, to take into account certain principles in respect of persons whose return has been postponed, including provision of emergency health care and essential treatment of illness, and attention to special needs in the case of vulnerable persons. The Administrative Court also noted that the Bulgarian authorities had not complied with their obligation under Article 8 of the Return Directive to remove the applicant as soon as possible.

The Administrative Court referred six questions to the CJEU. In this blogpost we will focus on the core question concerning the Return Directive, namely, do Articles 1, 4 and 7 of the Charter of Fundamental Rights of the EU, read in conjunction with the Return Directive, oblige a Member State to grant a right to stay to a long-term irregularly-staying TCN on compelling humanitarian grounds? Hence, our argument in this blogpost draws on EU law combined with human rights law, rather than being solely based on EU law (Hinterberger 2023, pp 102-110).

 

Judgment

The CJEU delivered its judgment on 12 September 2024 without first receiving an Advocate General’s Opinion. In relation to the authorisation in Article 6(4) of the Return Directive, Member States may regularise the stay of an irregularly staying TCN ‘at any moment’. The Court found that this provision ‘does no more than permit Member States to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law’ to irregularly staying TCNs (para 67). This option to regularise is not transformed into an obligation by Articles 1 (dignity), 4 (prohibition of inhuman and degrading treatment) or 7 (right to respect for private and family life) of the EU Charter of Fundamental Rights, regardless of the length of residence of the TCN which the Court found in fact to be ‘irrelevant’ (para 68).

TCNs who have not been removed despite being the subject of a return decision are not, however, left in a situation of rightlessness; in particular, they are still within the scope of EU law. The CJEU noted that Article 14(1)(b) and (d) of the Return Directive requires Member States to ensure as far as possible that as long as removal is postponed, emergency health care and essential treatment of illness are provided, and the special needs of vulnerable persons are taken into account (para 73). Furthermore, the prohibition of inhuman or degrading treatment codified in Article 4 of the Charter obliges Member States to ensure that irregularly staying TCNs do not find themselves in situations prohibited by Article 4. This would arise where, for example, a person wholly dependent on State support endures ‘extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity’ (para 75).

Emerging divergence with the European Court of Human Rights?

The Court’s finding in Changu, while consistent with its earlier case law, arguably diverges with rulings delivered by the European Court of Human Rights (ECtHR) in response to complaints that expulsion of irregularly staying migrants would violate the Article 8 ECHR right to respect for private and family life, which is also enshrined in Article 7 of the Charter. This divergence is evident in two areas. Firstly, the CJEU in Changu found that the length of residence of the applicant in the host state was ‘irrelevant’ to the question whether the Charter may impose an obligation to regularise individuals falling within the scope of the Return Directive. The ECtHR, however, attaches significance to the length of an immigrant’s stay in her host state where she seeks to resist expulsion on the basis it would violate her right to family or private life (Desmond 2021). While this is just one factor amongst many taken into consideration by the ECtHR in its assessment of the proportionality of an expulsion measure, length of residence has been invested with significance in a number of ECtHR rulings finding against states’ decisions to expel irregularly staying migrants, including in the Grand Chamber decision in Jeunesse (2014). Indeed, ‘the extent of the ties in the contracting state’, a proxy for time spent in a state, is one of the staple factors taken into consideration in the ECtHR’s Article 8 expulsion cases involving irregularly staying migrants (Bast et al 2022, pp 198-203).

Secondly, there is no evidence that the Court in Changu drew any negative inferences from the failure to remove the applicant from Bulgaria, despite the imposition of a return decision in 2005, and a second in 2017. This contrasts with the approach of the ECtHR for which the failure of state authorities to act with the requisite promptness has helped to tip the balance in favour of irregularly staying migrants seeking to resist expulsion (Desmond 2021, pp 426-428). Thus, for example, in Nunez (2011) the Court rebuked Norway for allowing almost four years to elapse, after discovering in 2001 the unlawful nature of Mirtha Nunez’s stay, before ordering her expulsion. Similarly, in Kaplan (2014) the Court noted that after Kamran Kaplan’s conviction in December 1999 for aggravated assault the authorities took no specific measures to deport him for about six years. This occasioned the Court to observe, as it had in Nunez, that the expulsion order did not in any real way meet ‘the interests of swiftness and efficiency of immigration control that was the intended purpose of such administrative measures’ (para 95). In discussing the applicant’s 16-year stay in the Netherlands in Jeunesse (2014), the Grand Chamber noted that tolerance of her presence ‘for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands’ (para 116). The passage of so much time in the Netherlands, and the substantial family and private life network facilitated thereby, played a key role in the Grand Chamber’s finding, by 14 votes to three, that expulsion would violate Article 8.

When read in light of this ECtHR line of case law, the finding of the CJEU in Changu that the applicant’s 26-year residence in Bulgaria was ‘irrelevant’ to the question of a right to regularisation is striking.

 

Could the Court have reached a different conclusion in Changu?

The finding of the CJEU in Changu is consistent with the CJEU’s earlier rulings concerning removal under the Return Directive including Mahdi (2014), Abdida (2014) and X (2022). There are, however, at least two complementary arguments that the Court should read the Return Directive as imposing an obligation to regularise irregularly staying TCNs who are not removed, firstly an effectiveness-based argument (Desmond 2020; Desmond 2022, p 147; Hinterberger 2023, pp 102-110) and, secondly, a human rights-based argument (Desmond 2015, pp 75-83; Bast et al 2022, pp 201-203).

The aim of the Return Directive to reduce the presence of irregularly staying migrants in the EU is inferable from the text of the Directive itself. Article 6(1) Return Directive requires Member States to issue a return decision to any irregularly staying TCN, a provision that has been interpreted by the CJEU to mean that Member States must ‘explicitly make provision in their national law for the obligation to leave the national territory in cases of illegal stay’. The aim is also evident in the view of the Commission that the Directive ensures that ‘a person is either legally present in the EU or is issued with a return decision’ (Commission Communication 2011, p 9). More recently, the Commission has referred to the obligation on Member States to take all necessary measures to ensure return (Commission Recommendation 2017, p 24). Both the Commission and the CJEU have repeatedly referred to the need to ensure the effectiveness of the EU’s return policy generally and of the Return Directive in particular. Both are demonstrably lacking in effectiveness, as evidenced by the fact that the majority of irregularly staying migrants are not issued with return decisions and the majority of those who do receive return decisions do not leave the EU (European Parliamentary Research Service 2019; Lutz 2018).

Regularisation, unconditionally open to Member States under Article 6(4), would allow TCNs who are not or cannot be deported to remain in the EU on a legal basis, thereby reducing the ongoing chasm between the number of return decisions issued and the number effected. Embracing regularisation would transform current return policy from one that is grossly ineffective to one which would have a greater likelihood of achieving the aim of lowering the number of irregularly staying migrants in the EU (Desmond 2020, p 6; Hinterberger 2023, p 357).

The human rights-based argument for regularisation is anchored in the belief that human rights considerations require a TCN to be allowed to remain lawfully in the EU instead of being expelled. These considerations include any family life a TCN may have in the host state, with which deportation would inevitably interfere. Similarly, the principle of the best interests of the child might mean that a child migrant should not be expelled to a country where her quality of life would be drastically lower than in the expelling state or that a TCN parent should not be expelled where expulsion would result in a separation of parent and child or removal of a child so as to accompany the deportee parent. Such considerations are, in fact, expressly acknowledged in the Directive and should, as set out in the Preamble, be primary considerations of Member States when implementing the Directive. 

The CJEU has explicitly held in cases such as Mahdi that there is no obligation on Member States under Article 6(4) to regularise TCNs for whom there is no longer a reasonable prospect of removal. Nonetheless, the explicit reference to human rights considerations in the Directive, the CJEU’s increasing reference to the EU Charter for Fundamental Rights and human dignity in its case law on the Directive and the wide concern with ensuring the effectiveness of the Directive and EU return policy all combine to produce a compelling argument for a regularisation obligation under the Return Directive in conjunction with the Charter of Fundamental Rights.

Oh Lord, don’t follow the Opinion in Mercedes-Benz: Advocate General Rantos proposes a retroactive interpretation of European type approval law which makes up to 200 Mio type approved motor vehicles in the EU illegal

 

 

Dr. Benedikt Wolfers, M.A. & Sebastian Lutz-Bachmann, LL.M.*

 

* Partners of the Law Firm Posser Spieth Wolfers & Partners in Berlin.

 

Photo credit: Reinhold Möller, via Wikimedia Commons

 

In recent years, the Court of Justice decided a series of cases in relation to vehicle type approval law. On 21 November 2024, Advocate General Rantos published his Opinion in two further cases (joint cases C-251/23, C-308/23 Mercedes-Benz). A regulatory key question in these cases is whether EU5 and EU6 vehicles registered in the EU that comply with the emission limits on the legally required chassis dynamometer test in the New European Driving Cycle (NEDC) also have to comply with these emission limits in real driving conditions outside the NEDC. For NEDC vehicles the more recent Real Driving Emissions (RDE) test, that has been introduced as of 1.9.2017, is not applicable.

 

In his Opinion, Advocate General Rantos nevertheless considers NEDC emission limits to be applicable in real driving conditions: In his view, NEDC vehicles “must simultaneously comply with all of the limits values set out in Annex I to Regulation No 715/2007, both in the NEDC test and in real driving conditions” (para. 61). He states “that compliance with the NOx emission limit values must be verified not only in the context of the NEDC test but also under real driving conditions, in normal use” (para. 47). This general, far reaching statement on Art. 4(2) and Art. 5(1) of Regulation (EC) No 715/2007 (on type approval of motor vehicles) is the basis to answer the initial question put the court: whether a NEDC vehicle has to meet the emission limit values in the NEDC test not only after a cold start (as Annex I to Regulation (EC) No. 715/2007 requires) but also after a warm start (as Annex I does not require). Advocate General Rantos confirms this and justifies his position with his general statement, “in so far as driving with a warm engine constitutes normal use […] in real driving conditions, as they are usually present in the territory of the European Union” (paras. 47, 92).

 

Since the Advocate General interprets the scope of Art. 4(2) and Art. 5(1) of Regulation (EC) No 715/2007 generally his view applies to all EU5 and EU6 NEDC light passenger and commercial vehicles (be extended to EU4 ), with a diesel or petrol engine, and is relevant for all courts and EU type approval and market surveillance authorities who prove compliance of NEDC vehicles with the EU emissions regulation - far beyond the individual case at hand.

 

Should Advocate General Rantos’ view prevail, holders of NEDC vehicles would have to meet retroactively the additional requirement to meet the emission limits in real driving conditions which did not exist at the time of the type approval and marketing of the vehicles. Holders will not able to not do so - because NEDC vehicles are no RDE vehicles and can typically not meet the NEDC limits in real driving conditions. This means that up to 200 Mio of EU citizens, tradespeople, service providers, etc. in the EU could be exposed to the risk that their NEDC vehicles, which did comply with the statutory test when approved, would today, retroactively, be considered illegal. This could lead to massive damage claims and recall of vehicles, imposing an unbelievably high burden on customers and the EU industry.

 

Advocate General Rantos’ opinion is not only very dangerous but also, legally, erroneous. It infringes the legal and factual status of the last 20 years as well as the fundamental legal principle that measures should have no retroactive effects. For more than 20 years, EU law has provided that the limit values for NEDC vehicles are tested in the NEDC test only, not in real driving conditions. For more than 20 years, the EU Commission, all EU member states, all vehicle approval authorities, scientists, courts, manufacturers, importers and consumers have applied the limit values for NEDC vehicles exclusively to the NEDC on the test bench, but not to normal use in real driving conditions. To comply with the law and to avoid massive risks for consumers and the industry in the EU the Court of Justice should not follow Advocate General Rantos’ proposal.

 

European type approval law does not provide for the application of NEDC emission limits in real drive conditions

 

Advocate General Rantos argues that the application of NEDC emission limits in real drive conditions would result from the existing case law of the Court of Justice on diesel vehicles (esp. from the decision in Case C-134/20 Volkswagen). However, in these cases the Court of Justice only decided on the interpretation of “normal driving conditions” in the context of defeat devices and did not decide that NEDC emission limits have to be met in real drive conditions. This is not the same. The definition and prohibition of a defeat device (in Art. 3(10) and Art. 5(2) of Regulation (EC) No 715/2007) is strictly to be distinguished from the question whether emission limits specified in Annex I to Regulation (EC) No. 715/2007 have to be met in real driving situations.

 

In that regard, European type approval law, to which Advocate General Rantos refers in his Opinion, does not provide for the application of NEDC emission limits in real drive conditions. Rather, Regulation (EC) No. 715/2007 and Regulation (EC) No. 692/2008, which form together the core of emission-related type approval law for vehicles in the European Union, clearly establish that compliance with the relevant emission limits is only required during the specified NEDC test procedures:

 

Emission limits for EU5 and EU6 are specified in Annex I to Regulation (EC) No. 715/2007. For passenger and light duty diesel vehicles NOx limits are 180mg/km (EU5) and 80mg/km (EU6) respectively. Art. 4(1) sub 2 Regulation (EC) No. 715/2007 obliges manufacturers to comply with the emission limit values set out in Annex I. The reference to meet the limits is immediately followed by a reference to the implementing measures. According to these implementing measures, which are set out in Regulation (EC) No. 692/2008, the emission limits must only be met under test procedures specified in the detailed annexes to Regulation (EC) No. 692/2008 (Art. 3 para 6 Regulation (EC) No. 692/2008). These test procedures most notably include the NEDC test procedures. Until 2017 the test procedures set out in the annexes to Regulation (EC) No. 692/2008 did not, however, refer to any testing under real driving conditions. Therefore, until 2017 all type-approved vehicles had to comply with the emission limit values set out in Annex I to Regulation (EC) No. 715/2007 only in the prescribed test procedures on the dynamometer.

 

Only for vehicles that have been type-approved since 1.9.2017 new test procedures that include normal use under specified real driving conditions on the road have been introduced. However, these RDE tests are not retroactively applicable for vehicles type-approved according to the NEDC before 2017.

 

Tests for NEDC vehicles under real drive conditions would not have been possible

 

An interpretation of the law which requires the impossible demonstrates that it is incorrect. This applies to Advocate General Rantos’ view that NEDC vehicles should meet the emission limits in real driving conditions: No type approval authority, no technical service and no manufacturer could have implemented this – for two reasons:

 

First, until 2017 EU law did not provide for any procedure to test emission limits of EU4, EU5 and EU6 NEDC passenger cars and light duty vehicles in real driving conditions. Each emission limit, however, requires a description of the test procedure with which it is to be tested. This is a scientific-technical law and logically mandatory. Every material test and every technical limit requires a description of the procedure in which it is tested. However, a procedure for testing emissions from passenger cars and light duty vehicles in real driving conditions was only introduced in EU law for new vehicle types as of 1.9.2017 (introduction of RDE tests). Without a legally recognized test procedure, type approval authorities could not have tested NEDC vehicles in real driving conditions.

 

Second, until 2017 it would not have been technically possible to test the emissions of passenger cars and light duty vehicles in real driving conditions. So-called PEMS devices, which have been used to carry out the RDE test of passenger cars and light duty vehicles since 2017, were not available when EU4 and EU5 were introduced in 2005 and 2009 respectively. The first recognition of PEMS devices as a measurement technology under EU law was for heavy duty vehicles in 2011 which was not applicable for passenger cars and light duty vehicles (Art. 2 No. 12 and Annex II Appendix 1 of Commission Regulation 582/2011 of 25 May 2011 on Heavy Duty Vehicles Emissions). For NEDC passenger cars and light duty vehicles, PEMS measurement technology for real driving conditions was only created and recognised in EU law with the introduction of RDE tests for new vehicle types as of 1.9.2017. Without a legally recognized PEMS test equipment, type approval authorities could not have tested NEDC vehicles in real driving conditions.

 

Advocate General Rantos’ opinion contradicts with practice of European Commission, Member States and all type approval authorities for more than 20 years

 

The incorrectness of Advocate General Rantos’ view is confirmed by the practice of the European Commission, EU Member States, vehicle approval authorities, scientists and courts, which for more than 20 years, as numerous documents show, have applied the EU4, EU5 and EU6 emission limits for NEDC vehicles only in the NEDC and not under normal use in real driving conditions.

 

Because the NEDC was criticised for not being representative for real driving conditions it was replaced at EU level in 2017 for new vehicle types by a new test procedure which provides for a more demanding driving profile on the chassis dynamometer (WLTP) and additionally and for the first time by a test under normal use under specified real driving conditions on the road (RDE test). This new legislation and its historical background confirm that before the change of law in 2017 the emission limits of NEDC vehicles had to tested in the NEDC only. This is also the view of the European Commission which in 2019 explicitly stated that “the mandatory NOx emission limits for diesel cars in the EU have been progressively lowered from 500 mg/km at Euro 3 […] to 80 mg/km at Euro 6. However, there is evidence that despite these increasingly stringent NOx limits, that are verified under laboratory conditions and on a standardised test cycle, the actual NOx emissions under real driving conditions did not come down to the same extent (Weiss et al. 2011). In response to this, the Commission has developed the real driving emissions procedure (RDE). […] It first applied for monitoring purposes from early 2016 to complement the laboratory test and has been applicable to new vehicle types as from 1 September 2017” (see: Proposal by EU Commission for a Regulation amending Regulation 2007/715; COM(2019) 208 final).

 

Conclusion: Court of Justice should not follow Advocate General’s Opinion

 

Retroactively expanding the scope of emission limits for NEDC vehicles on real driving conditions would undermine the trust in the harmonized European type-approval law and in the internal market which for more than 20 years has provided that the emission limit values for NEDC vehicles are tested in the NEDC only, not in real driving conditions. Up to 200 Mio of EU citizens, tradespeople, service providers, etc. in the EU could be exposed to the risk that their NEDC vehicles, which did comply with the statutory test when approved, would today, retroactively, be considered illegal. Such an important decision falls outside of the competence of the Court of Justice and would rather have to be adopted by a legislative act (Art. 289(3) TFEU). However, such a legal act, that would retroactively impose additional duties (and potentially sanction), would not fulfil the requirements established by the Court of Justice under which such a retroactive application is exceptionally permissible (Case 98/78, ECR 1979, 69, para. 20 (Racke); Case 84/81, ECR 1982, 1763 para. 13 - 15 (Staple Dairy Products); Case 114/81, ECR 1982, 3189, para. 5-11 (Tunnel Refineries)). Therefore, the Court of Justice should not follow the arguments in Advocate General Rantos’ opinion.