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 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.

 

As long as the system of remedies and the objectives are not undermined: The Court of Justice on GDPR enforcement (Case C-21/23, Lindenapotheke)

 

 

 

Alessandra Fratini and Giorgia Lo Tauro, Fratini Vergano European lawyers

Photo credit: via Wikimedia Commons

Introduction

On 4 October 2024, the Grand Chamber of the Court of Justice of the European Union issued its judgment in Lindenapotheke (Case C-21/23), a case concerning the online sale of pharmacy-only medicinal products and its implications as regards GDPR compliance. In its request for a preliminary ruling, the German Federal Court of Justice (Bundesgerichtshof) raised two questions on the interpretation of the GDPR. While acknowledging the importance of the second question on the meaning of ‘data concerning health’, this post focuses on the first one, concerning the compatibility of the system of remedies established in Chapter VIII GDPR with other remedies under national law. The paragraphs below, after a short overview of the facts of the case and the preliminary questions, review the main findings of the Advocate General and of the Court of Justice on the first question and conclude by placing the judgment within the rising trend of addressing the challenges of digital markets through a broader enforcement of EU digital regulation.

 

Facts of the case and questions referred

The main proceedings involved two competitors operating pharmacies in Germany, ND and DR. ND, which operates a pharmacy under the trade name ‘Lindenapotheke’, has been selling pharmacy-only medicinal products via the ‘Amazon-Marketplace’ online platform since 2017.

DR brought an action before the German Regional Court seeking an order for ND to cease selling pharmacy-only medicinal products via the online marketplace on the basis that such marketing constituted an unfair commercial practice in so far as it was pursued in breach of Article 9 GDPR, which requires that the data subject’s prior explicit consent be obtained for the processing of data concerning health. According to the German law against unfair competition, in fact, “anyone who infringes a statutory provision intended, inter alia, to regulate market conduct in the interest of market players acts unfairly where that infringement is capable of having an appreciable adverse effect on consumers, other market players or competitors”; such an infringement constitutes a prohibited unfair commercial practice enabling any competitor to claim an injunctive relief (paras. 21-23 of the judgment). The Regional Court upheld the action and the subsequent appeal brought by ND was dismissed by the Higher Regional Court, which held that such an online marketing was contrary to the national law against unfair competition. ND lodged an appeal on a point of law before the German Federal Court of Justice, which raised a request for a preliminary ruling on the interpretation of Chapter VIII and Article 9(1) GDPR, but also Article 8(1) of Directive 95/46 (the previous data protection Directive) before the Court of Justice.

Question 1

With its first question, the referring court asked the Court of Justice whether a competitor, who is not a data subject within the meaning of Article 4(1) GDPR, has standing to bring an action before the civil courts against the alleged infringer of the GDPR, on the basis that the alleged infringement falls within the prohibition of unfair commercial practices. The referring court noted that the provisions of Chapter VIII GDPR do not mention, nor do they explicitly exclude, the possibility for competitors to bring an action against an undertaking, where the infringement of data protection law constitutes an unfair commercial practice (para. 35). The referring court underlined the uncertainty of the situation and highlighted both the risks of recognising such a possibility for competitors, in terms of potential encroaching on the powers of the supervisory authorities and ensuing divergences, and its potential benefits in terms of ‘effet utile’ to ensure the highest level of data protection (paras. 36-39).

Question 2

With its second question, the referring court asked the Court of Justice to clarify whether the data which customers must enter on the online sales platform when ordering medicinal products (such as name, delivery address and information required for individualising the medicinal products ordered) constitute ‘data concerning health’ within the meaning of Article 8(1) of Directive 95/46 and Article 9(1) GDPR. In particular, the doubts of the referring court concerned non-prescription medicinal products, since these may be intended not necessarily for the customers but for third parties, who may not be identifiable (para. 41).

In the opinion of the referring court, the questions of a competitor’s standing to bring proceedings (para. 39) and of the notion of ‘special categories of personal data’ (para. 43) had not been clarified by the case-law of the Court of Justice and warranted its request for a preliminary ruling.

 

The Opinion

In his Opinion, Advocate General Szpunar first changed the order of the proposed questions, as he considered that if the answer to the second one were to be negative, there would be no need to answer the first one (para. 31 of the Opinion). Addressing the second question at the outset, the AG suggested to answer that “the data of the customers of a pharmacist which are transmitted when an order is placed on an online sales platform for pharmacy-only but non-prescription medicines do not constitute ‘data concerning health’ within the meaning of Article 4(15) and Article 9 of the GDPR, in so far as only hypothetical or imprecise conclusions as to the health status of the person placing the online order may be drawn, which it is for the referring court to verify” (para. 54).

In the light of that proposed negative answer, the first question was dealt with in the Opinion only for the sake of completeness. Having acknowledged that the GDPR confers no rights on undertakings and their competitors, as that regulation grants rights only to data subjects (paras. 79-81), the AG assessed whether the GDPR system of remedies has to be seen as an exhaustive system, in the sense that it precludes undertakings from relying on a GDPR infringement in the context of other remedies provided for by national law (paras. 82-89).

First, he noted that the action at issue in the main proceedings was not based on a GDPR infringement, but took such an infringement into account in an incidental manner. The Court already accepted, in its judgment in Meta Platforms and others (2023), that data may be taken into account in an incidental manner and that an infringement of the GDPR may constitute an infringement of competition law (paras. 90-91), and the AG considered that was applicable to the present case (para. 91). Second, as regards the interaction between national actions in which the GDPR can be invoked incidentally and the GDPR system of remedies, the AG observed that the former should be accepted only on condition that they do not undermine the GDPR system of remedies or the attainment of its objectives (para. 95). In the present case, since an action brought by an undertaking against a competitor is not intended to ensure respect for the data subjects’ rights but pursues another objective, the actions made available to data subjects by the GDPR system of remedies are preserved and may still be exercised in those circumstances (paras. 100-101). Furthermore, in the AG’s view, the objectives pursued by the GDPR, such as the high level of protection of natural persons and the consistent and homogenous application of the data protection rules (recital 10), are not threatened (but, as for the high level of protection, actually strengthened) by the possibility afforded to an undertaking to bring an action for an injunction against a competitor based on the prohibition of acts of unfair competition, in reliance on a GDPR infringement by that competitor (paras. 103-104). Finally, the AG noted that, far from being undermined, the effectiveness of the GDPR would be reinforced by the fact that compliance with its provisions may also be enforced in judicial proceedings distinct from those within its system of remedies. Accordingly, he concluded that such national remedies may exist alongside the system established by the GDPR (paras. 105-108).

 

The Judgment

The Court of Justice considered the questions in the order they were raised by the referring court and departed from the Opinion with regard to the answer to the second question.

To address the first question, the Court interpreted the relevant provisions of Chapter VIII GDPR by relying on their wording, the context and the objectives pursued by the GDPR (para. 52 of the judgment). As to the wording, the Court noted that not only the provisions of Chapter VIII do not expressly rule out the possibility for additional national remedies, but the rights provided for by Article 77(1), Article 78(1) and Article 79(1) are ‘without prejudice’ to any other administrative, judicial or non-judicial remedy (para. 53). When it comes to the context, while it agreed with the AG that only data subjects are beneficiaries of the GDPR protection, the Court noted in addition that the infringement of its substantive provisions is also liable to adversely affect third parties (in this sense, it referred to the right to compensation provided for by Article 82(1); para. 55). The Court recalled that it had already held that the infringement of data protection rules may at the same time give rise to an infringement of rules on consumer protection or unfair commercial practices (judgment in Meta Platforms Ireland, 2022, para. 78) and may be “a vital clue” in the assessment of an abuse of a dominant position (judgment in Meta Platforms and others, 2023, para. 47) (para. 55). It also noted the importance of access to personal data and the ability to process such data, which “have become a significant parameter of competition between undertakings in the digital economy”, so that it may be necessary to consider rules on data protection when enforcing competition law and the rules on unfair commercial practices (para. 56).

Interestingly, while the above would have been sufficient to interpret Chapter VIII in the light of the context, the Court went further to consider the margin of discretion enjoyed by Member States in the implementation of the GDPR. In this respect, even though the GDPR “seeks to ensure the harmonisation of national legislation on the protection of personal data which is, in principle, full, the fact remains that several provisions of that regulation expressly make it possible for Member States to lay down additional, stricter or derogating national rules, which leave them a margin of discretion as to the manner in which those provisions may be implemented (‘opening clauses’)”(para. 57). After referring to its judgment in Meta Platforms Ireland (2022, para. 57), which concerned a provision of the GDPR (Article 80) expressly containing an opening clause, the Court added: “It is true that the provisions of Chapter VIII of the GDPR do not specifically provide for such an opening clause which would expressly allow Member States to make it possible for a competitor of an undertaking which allegedly infringes the substantive provisions of that regulation to bring an action in order to put an end to that infringement. However, it follows from the wording and context of the provisions of Chapter VIII (…) that, by adopting that regulation, the EU legislature did not intend to bring about an exhaustive harmonisation of the remedies available in respect of infringements of the provisions of the GDPR and, in particular, did not wish to rule out the availability of such remedies to competitors of the person allegedly responsible for an infringement of the laws protecting personal data, on the basis of national law relating to the prohibition of unfair commercial practices” (paras. 59-60, emphasis added).

In the Court’s view, that interpretation was corroborated by the GDPR objectives (i.e., ensuring a consistent and high level of protection of natural persons with regard to the processing of personal data and removing obstacles to the flow of such data within the EU; strengthening of the rights of data subjects and of the obligations of those who process and determine the processing of data, as well as equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data and equivalent sanctions for infringements in the Member States; providing natural persons in all Member States with the same level of legally enforceable rights and obligations and responsibilities for data controllers and processors, and ensuring consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States) (para. 61). It found therefore that the possibility of national remedies like those at stake does not undermine those objectives but actually enhances the effectiveness of the GDPR provisions (para. 62). These national remedies are in addition to those of Chapter VIII and pursue an objective (fair competition) which is different from those pursued by the GDPR. In this context, as the German government observed, the uniform interpretation of the GDPR remains ensured by the preliminary ruling procedure under Article 267 TFEU (paras. 65-67). Furthermore, the Court held that national remedies aimed at ensuring fair competition undoubtedly contribute to compliance with the GDPR and, therefore, to strengthening the rights of data subjects: an application for injunctive relief filed by a competitor may also prove particularly effective in so far as it may prevent a large number of infringements of data subjects’ rights (paras. 69-70).

In the light of the above, the Court concluded that Chapter VIII does not preclude national legislation providing for such remedies to the benefit of competitors, while leaving to the referring court the assessment of whether the alleged infringement of the GDPR, in so far as it is established, also constitutes a breach of the prohibition of unfair commercial practices under the relevant national law (paras. 71-72).

As to the second question, suffice it to say that the Court, unlike the AG, found that the information which customers enter when ordering online pharmacy-only medicinal products, the sale of which does not require a prescription, does constitute ‘data concerning health’ even where it is “only with a certain degree of probability, and not with absolute certainty, that those medicinal products are intended for those customers” (para. 90). This, however, does not preclude it from being processed, in specific contexts, if the conditions for exemptions are met (para. 92), i.e. does not mean automatically that the processing is in breach of the GDPR.

 

Concluding remarks

The judgment in Lindenapotheke, as far as the first question is concerned, provides an interpretation of the GDPR system of remedies aimed at enhancing the effectiveness of data protection. The remarkable point of the reasoning is the emphasis placed on the margin of discretion recognised to Member States in implementing the GDPR, with a view to enhancing the protection afforded by it. While in Meta Platforms Ireland (2022) the Court could rely on the wording of the provision concerned (para. 59: “(…) Article 80(2) of the GDPR, which leaves the Member States a discretion with regard to its implementation. (…) Member States must make use of the option made available to them by that provision to provide in their national law for that mode of representation of data subjects”), in Lindenapotheke it admitted that Chapter VIII does not expressly provide for any opening clause allowing Member States to make available further remedies for actors other than data subjects invoking a GDPR infringement. However, by relying on the wording and context of Chapter VIII, as well as on the legislator’s intention and the GDPR objectives, it came to the conclusion that Member States can make available such remedies to competitors of the person allegedly responsible for an infringement of the laws protecting personal data, since such a possibility is not being ruled out by the GDPR system of remedies and its objectives (paras. 60-61). The Court’s interpretation actually seems to encourage Member States to make additional remedies available under national laws, insofar as they enhance the effectiveness of data protection (paras. 62 and 69).

From this perspective, the Court’s conclusion is significantly relevant when placed in the context of the ongoing debate on the GDPR (under) enforcement (Gentile-Lynskey, 2022), the shortcomings of its composite enforcement system (Hofmann-Mustert, 2024) and the Commission’s Proposal for a Regulation laying down additional procedural rules relating to the enforcement of the GDPR (2023). When it comes to the handling of complaints and the role of complainants, it has been observed that these vary significantly among Member States, which in turn results in a limitation of individual procedural rights (Hofmann-Mustert, 2024). Against this background, some rightly fear, by comparing this judgment with previous case law, that its “implications have the potential to be more disruptive” as regards the consistent enforcement of the GDPR and introduce “greater potential risks of interference between administrative and judicial enforcement” (van den Poel, 2024).

However, the implications of the judgment are less daunting when considering the GDPR enforcement in the broader context of digital legislation. The Commission Second Report on the application of the GDPR, published on 25 July 2024, makes it clear that “the development of digital regulations raises the need for close cooperation across regulatory fields. Such cooperation is all the more necessary since data protection issues increasingly intersect with questions of, for example, competition law, consumer law, digital markets rules, electronic communications regulation and cybersecurity. (…) data protection authorities are taking steps to ensure their actions are complementary and coherent with other regulatory fields”. In its statement of 3 December 2024 on the Commission Second Report, the EDPB also recognised that it “would support a holistic methodological approach for the next evaluation of the GDPR that explores the interplay between the GDPR and other EU digital legislation”.

The judgment fits into this context of growing institutional awareness of the need for a holistic and coordinated approach for the effective protection of personal data, in line with the “more ‘collaborative approach’” proposed by scholars for the enforcement of data protection, competition law and unfair competition law (Vandendriessche, 2024). The Court insists on the likely enhanced effective enforcement of the GDPR via national remedies aiming at other objectives (Holtz, 2024), by proposing an interpretation where the GDPR as such calls upon the Member States for its effective enforcement (again, paras. 60-61). By stating that “such an application for injunctive relief brought by a competitor may prove, like that brought by a consumer protection association, to be particularly effective in ensuring such protection, in so far as it is capable of preventing a large number of infringements of the rights of data subjects by the processing of their personal data” (para. 70), the Court recognises the preventive effect of a potential “private enforcement” (Opinion, para. 93) through remedies allowed under national laws, which has been read as an ‘incentive’ for market players to contribute to GDPR compliance (Vandendriessche, 2024). In this sense, the judgment embraces an emerging approach in the EU regulation of the digital environment, which is aimed at involving in the enforcement multiple actors of society as a whole. This approach is evident when it comes to making the online world safer and fairer, namely with the DSA: for example, as far as institutional actors are concerned, in the cooperation required between the Commission and the Digital Services Coordinators with regard to systemic risk mitigation measures (Peukert, 2024); even more, as far as non-institutional actors are concerned, in the mechanisms required to allow any user - individual or entity - to notify illegal content online, or in the required cooperation with “trusted flaggers” (Articles 16, 22, 35 DSA) (in this sense, see also Commission’s dialogue with Civil Society Organisations for implementing the DSA).

It remains to be seen whether such an approach succeeds in becoming consolidated through greater coordination of EU institutions and national authorities and greater awareness of society at large, alongside the required adjustments for the effective implementation of the remedies the GDPR grants to data subjects.

The Council’s position on proposed EU law on migrant smuggling: cynical political theatre?

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Ggia, via Wikimedia Commons

Introduction

Member States’ ministers (the EU Council) are likely to agree a negotiating position this week on replacement of existing EU law on smuggling of migrants – raising questions in particular about the compatibility of this law with human rights, including as regards humanitarian assistance for migrants. The following analysis first sets out the current law, comparing it to the Commission’s proposal for replacing that law last year, then comparing that proposal in turn to the likely text of the Council position, concluding with comments on the latest text. The proposal will still have to be negotiated with the European Parliament, which does not yet have a negotiation position of its own.

Current law

Because it was adopted before the entry into force of the Treaty of Lisbon, the current law is divided between two measures – a Directive setting out the prohibition on facilitating illegal entry or stay, and a Framework Decision providing for criminal offences based on the prohibition. (The proposed law is a Directive that will combine and replace the two).

According to the 2002 Directive, Member States must impose ‘appropriate sanctions’ on anyone who ‘intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’ (illegal entry), and anyone ‘who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens’ (illegal stay). Note that the prohibition on facilitating ‘illegal entry’ is not subject to a ‘financial gain’ motive; but the Directive goes on to say that any Member State ‘may decide not to impose sanctions’ in such cases, ‘by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. Member States must also apply sanctions where people are instigators of or accomplices in, or attempt, such actions.

The Framework Decision then specifies that the prohibitions in the Directive must be enforced by ‘effective, proportionate and dissuasive criminal penalties which may entail extradition’, possibly accompanied by ‘confiscation of the means of transport used to commit the offence’, ‘a prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the offence was committed’, or ‘deportation’. In the case of illegal entry for financial gain or instigation, the Framework Decision is more precise about sentencing: there should be a possible maximum penalty of at least eight years where the offence was committed as part of an organised crime group (as defined by a separate EU law), or ‘while endangering the lives of the persons who are the subject of the offence’. But that could be lowered to six years if that was ‘imperative to preserve the coherence of the national penalty system…provided that it is among the most severe maximum sentences available for crimes of comparable gravity.’

After standard provisions on liability of, and sanctions for, legal persons, the Framework Decision requires Member States to establish jurisdiction over an offence committed ‘in whole or part upon its territory’, by its nationals, or for the benefit of a legal person established there. But Member States may waive either of the latter two rules, or apply them only in ‘specific cases or circumstances’. There is also a specific rule on extradition and prosecution (no longer relevant in light of the European Arrest Warrant), and rules on communication between Member States, where one of them is informed about breaches of the law of another Member State, or requests another Member State to prosecute as regards breaches of its own law.

Finally, the Framework Decision includes a safeguard for asylum:

This framework Decision shall apply without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States' compliance with their international obligations pursuant to Articles 31 and 33 of the 1951 Convention relating to the status of refugees, as amended by the Protocol of New York of 1967.

There is limited case law on the current law, but the Advocate-General’s opinion in the pending case of Kinsa addresses its application to a family member being prosecuted for assisting her child to enter the territory. According to the opinion, this is covered by the obligation to criminalise assistance in the Directive (unless Member States opt out of that aspect), and the Directive is valid; but Member States are obliged to impose lower penalties in such cases.

 

Proposal

The Commission’s proposal starts with a merged criminal offence of assisting illegal entry or stay, either subject to a financial benefit test or a serious harm test:

a) the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit; or

b) there is a high likelihood of causing serious harm to a person.

The preamble states that these elements of the offence:

…will usually not be fulfilled when it comes to assistance among family members or the provision of humanitarian assistance or the support of basic human needs. Third-country nationals should not become criminally liable for having been the subject to such criminal offences. Moreover, it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.

Although the asylum safeguard would be dropped from the main text, a version of it would still appear in the preamble:

Member States should apply this Directive in accordance and in full compliance with the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of New York of 1967, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights.

The proposal also suggests a fleshed-out offence of ‘public instigation’ of illegal entry or stay, although the preamble states that providing ‘objective information’ about immigration and asylum law is not to be covered by this, and that the instigation would amount to ‘illegal content’ covered by the social media content regulation rules in the Digital Services Act.

The offence must be treated as ‘aggravated’ where it was committed within the framework of organised crime, ‘deliberately or by gross negligence caused serious harm to, or endangered the life of, the third-country nationals who were subject to the criminal offence’, was ‘committed by use of serious violence’, where those subject to the offence ‘were particularly vulnerable, including unaccompanied minors’, or where it caused the death of the migrant. Member States must also criminalise incitement, aiding and abetting and attempt – except as regards the ‘public instigation’ offence.

There would be more details on penalties: a maximum penalty possible of at least three years in general for the main offences; ten years (up from eight, or maybe six) for the (longer) list of aggravated cases, also now applying to illegal stay assistance, not only assistance for illegal entry; and fifteen years where a death was caused. (There would be no specific sentencing rule as regards the inchoate offences of incitement, aiding and abetting, or attempt).  

An expanded list of other penalties would include ‘withdrawal of permits or authorisations to pursue activities which have resulted in committing the criminal offence, or prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the criminal offence was committed’ (the latter part reflecting the current law); return to a non-EU country either following sentence in the Member State concerned, or serving some or all of the sentence in the non-EU country, without prejudice to more favourable EU or national rules (building upon the current ‘deportation’); an entry ban for an appropriate period of a maximum ten years, again without prejudice to more favourable EU or national rules; exclusions from public funding etc; fines; and freezing and confiscation of proceeds and instrumentalities (building on the current confiscation of means of transport).

The current provisions on liability of legal persons would be supplemented by more detailed rules on levels of fines, resembling more the penalties in EU competition law (or the Digital Services Act): 3% of worldwide turnover as the general rule, 5% in the case of aggravated offences, 6% where a death is caused. There would also be a list of aggravated circumstances: an offence committed by a public official; a link to illegal employment offences; a prior conviction for the same offence; a link to ‘the exploitation or instrumentalisation of’ the migrant; dispossessing migrants of their ‘identity or travel documents’; or committing the offence while carrying a firearm. Conversely, helping the authorities to ‘find evidence’ or ‘identify or bring to justice other offenders’ would be a mitigating circumstance. But the consequences of either would not be further specified by the Directive.

Like several recent EU criminal law measures, there would be rules on minimum limitation periods: at least seven years after the commission of the offence as a general rule; ten years for aggravated offences; and fifteen years for deaths (including attempts). The same limitation periods would apply as regards enforcement of the sentence, from the date of conviction. As a derogation, these periods could be reduced to five, eight and ten years, ‘provided that the period may be interrupted or suspended in the event of specified acts’.

Jurisdiction would be expanded, to include not only acts committed on the territory in whole or part, but also by nationals and non-EU habitual residents, for the benefit of a legal person also where it does business in the territory, on board its ships or aircraft (registered or flying its flag), or resulting in the entry, transit or stay of the migrants concerned. Unlike the current law, Member States could not opt out of any of these jurisdiction rules. Where an offence was committed outside its territory, Member States would have to drop any requirement that the act was a criminal offence in the other country, or that prosecution required information from the other country first.  

There are some vague new provisions on prevention, resources, training, investigative tools, and data collection, and finally a requirement to apply the new law within one year – shorter than the normal two years for Directives.

 

Council position

First of all, the Council version simplifies the main criminal offence by dropping the provision about causing serious harm as well as the ‘public instigation’ offence. The offence remains assistance to illegal entry or stay, with a financial benefit element. A further safeguard clause has been added to the preamble:

In particular, nothing in this Directive should affect the rights, obligations and responsibilities of Member States and individuals to provide assistance to third-country nationals, for humanitarian reasons or aimed at meeting their basic human needs, under applicable international law - including international human rights law and in particular, where applicable, the 1951 Convention relating to the status of refugees as amended by the Protocol of New York of 1967, the United Nations Convention on the Law of the Sea, and in compliance with legal obligations. This assistance can also include legal, linguistic or social advice or support.

However, the preamble also expressly reserves the possibility for Member States to criminalise support not motivated by financial benefits (new text underlined):

Assistance of unauthorised entry, transit or stay in the Union should constitute a criminal offence at least when there is a link with an actual or a promised financial or material benefit. This is without prejudice to the way in which Member States deal in their national law with facilitation conducts for which an actual or a promised financial or material benefit is not a constituent element of the offence.

A wholly new recital in the preamble makes the point even more clearly:

This Directive is an instrument of minimum harmonisation. As a consequence, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers. Member States should ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence at least where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit. However, since this Directive is an instrument of minimum harmonisation, Member States are free to criminalise such conduct when no financial or another material benefit has been provided.

And the Commission’s proposed recital stating that family members, and migrants subject to the offence, should not themselves be criminalised, is replaced by two recitals giving Member States leeway to do just that:

Nothing in this Directive should be understood as requiring the criminalisation, on the one hand, of assistance provided to close family members and, on the other hand, of humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with the applicable national and international legal framework.

Without prejudice to rules of national law relating to unauthorised entry in the territory of the Member State concerned, third-country nationals should not become criminally liable for the sole fact of having been the subject to the criminal offence of facilitating the unauthorised entry, transit across, or stay within the territory of any Member State.

In this context, it should be noted that the case law on the Returns Directive, beginning with El Dridi, places limits on Member States enforcing criminal law against migrants for irregular entry or stay by means of custodial sentences – although this is subject to exceptions, and the rationale for it is to speed up expulsion.  

The penalty would follow the Commission proposal for at least a three year possible maximum sentence for the offences. But it would revert to eight years (as at present, although without the option to lower that to six years) for (a longer list of) aggravated offences. It would also revert to an option to apply these sentences to illegal stay cases, and refer to serious endangerment of life – a higher threshold than the current law – as regards one of the grounds of aggravated offences (and the proposed extension to include serious harm would be dropped). The possible maximum sentence would be at least ten (not fifteen) years where a death is caused (subject to the added requirement that the death was caused by seriously endangering the migrant’s life; a new recital in the preamble refers to ‘intention’ being defined by national law, and the avoidance of strict liability). As for additional penalties, the Council would drop the reference to return (thus being less stringent on this point than the current law) as well as the specific reference to a 10-year entry ban (the length of the ban would not be specified).

The penalties for legal persons would be simplified by adding a possibility of a lump sum (€24 million for basic cases, €40 million for aggravated cases); deaths of migrants would be subsumed within the rules on other aggravated cases. A new provision would allow for different penalties than these, if necessary to be consistent with national penalty systems. Aggravating circumstances would no longer include a link to illegal employment, exploitation of migrants (although ‘instrumentalisation’ would now be defined in the preamble), or carrying a firearm, but would now include cases where ‘the criminal offence was committed involving cruel, inhuman, or degrading treatment of a third-country national who was subject to the criminal offence.’

Limitation periods for prosecution would be reduced compared to the proposal, matching the sentencing rules – ie a limitation period of three years where the maximum penalty must be at least three years, eight years for aggravated offences, and ten where death was caused via serious endangerment. A separate set of limitation periods would apply to enforcement after a sentence – three, five, eight or ten years from the conviction, depending on the length of the sentence. Member States could reduce either set of limitation periods to five years (where they were longer than that).

Next, Member States would only be obliged to assert jurisdiction where the offence was committed in whole or part on its territory, or by their nationals, or on board their ships or aircraft. Unlike the proposal, it would be optional to assert jurisdiction as regards non-EU habitual residents, where the act was for the benefit of a legal person established or doing business in the territory, or where the act aimed at the entry, transit or stay of the migrants concerned. Where an offence was committed outside its territory, Member States could retain a requirement that the act was a criminal offence in the other country. Finally, Member States would have two years to give effect to the Directive – probably bringing us to the second half of 2027.

 

Comments

If the European Parliament accepts the Council’s position – and we have no idea what the Parliament (now less liberal than it was before on immigration issues) will argue for – then the main changes from the current law would be:

-          criminalising assistance to illegal entry without financial benefit would no longer be the rule under EU law, with an opt out for Member States, but rather outside the scope of the law, leaving Member States free to criminalise it if they wish;  

-          a three year possible maximum criminal sentence for the main offences, and ten years where a death was caused by seriously endangering a migrant’s life;

-          returns would no longer be explicitly referred to as a penalty, although entry bans now would be;

-          there would be more specific possible penalties for legal persons;

-          there would be new rules on aggravating circumstances, mitigating circumstances, and limitation periods; and

-          jurisdiction would have to be asserted also as regards ships, aircraft and nationals.

The most controversial element here is likely to be exactly how to treat offences not committed for financial gain. (On this point, see also the Belgian Presidency redraft six months ago) Although nominally removing the default obligation under EU law to criminalise all cases of assisting illegal entry, unless Member States choose to opt out, Member States will still be left to criminalise such cases if they wished to, outside the scope of EU law.

In fact, if the Advocate-General’s opinion in the pending Kinsa case is followed, the position of anyone criminalised in this situation will arguably be worse: if EU law no longer applies to them, then even the obligation to reduce the possible penalties applicable to them, recommended by the Advocate-General, will no longer apply. Only a fully-fledged humanitarian defence to criminal liability would suffice. But on that point, it might be argued that since the EU can only set minimum rules on criminal offences (according to the Treaties), EU law is unable to provide fully for defences, because Member States are always free to insist upon greater criminal obligations than EU law provides for.

As for the other changes to the law, the provisions on sentencing, entry bans, limitation periods, special circumstances and jurisdiction may already reflect what many Member States do in practice. It’s hard to be sure because the Commission did not produce an impact assessment on its proposal, although the explanatory memorandum to that proposal did give some examples of potential maximum sentences of less than three years in some Member States. Taken as a whole, this exercise looks like another example of ‘migration theatre’ – an activity intending to signal some effort to control migration flows, but which does not change things much in practice, either as regards criminal liability for those profiting from smuggling, or exemption from liability for humanitarians and desperate family members who do not.